# Solictors affidavit query



## mat (27 Jan 2010)

A very elderly relative made a will with Solicitor X , 5 years later the relative passed away and on the death certificate dementia was mentioned . Probate office requested the beneficiary to obtain an affidavit from said solicitor stating that the relative was of sound mind at the time of making the will. When the beneficiary contacted the solicitor they refused to sign. The probate office then wrote to the solicitor requesting that he sign an affidavit. The solicitor has now written to the beneficiary stating that they will sign an affidavit for a fee (fee was mentioned in the letter). My query – is there a standard fee for such an affidavit or can they charge what they like and also is it normal that the solicitor contacted the beneficiary when it was the probate office who corresponded with them? (Probate was done without the assistance of a solicitor)


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## mf1 (27 Jan 2010)

How much is the fee? 

I don't think the Probate Office would contact the solicitor. Isn't it for the executor to prove the will? 

Why not get the Doctor to give an Affidavit of Capacity?

mf


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## mat (27 Jan 2010)

Hi, thanks for the reply - Probate office did contact the solicitor they sent a copy of the letter to the beneficiary. The relative wasnt attending any doctor at the time of the making of the will so none of the doctors or consultants they attended subsequently want to sign anything. Its being passed around in circles no-one wants to sign! The fee isnt very large but I just thought it unusual that there was a change of mind when probate office contacted them and they then proceeded to contact the beneficiary requesting a fee.


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## mf1 (27 Jan 2010)

"The fee isnt very large but I just thought it unusual that there was a change of mind when probate office contacted them and they then proceeded to contact the beneficiary requesting a fee.!"

What does it matter? The executor will get the Affidavit. 

I'm of the mind to wonder why clients/strangers expect the solicitors profession to keep a warehouse full of information about clients past and present and then provide that information, free gratis and for nothing!

I am routinely contacted by people I may not have heard from for years looking for info off their file, "as they binned it" but they're sure I kept it! Equally, there is an element  of work involved in dealing with an Affidavit of mental capacity - I might not charge for it, but why should'nt a solicitor? 

mf


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## mat (27 Jan 2010)

Well in my opinion a solicitor shouldnt take money for a will from a 90 yr old person without questioning their state of mind at the time! If a will is taken surely the solictor should be confident of the state of mind of their client and then if subsequently requested to provide an affidavit I find it strange that they first refuse and then decide (after being contacted by Probate office) to agree but charge a fee. I think the whole issue of taking a will (especially from an elderly person) is crazy as it stands. The solicitor is only too happy to accept the fee for the will but has no medical history of the person making it!


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## mf1 (27 Jan 2010)

mat said:


> Well in my opinion a solicitor shouldnt take money for a will from a 90 yr old person without questioning their state of mind at the time! If a will is taken surely the solictor should be confident of the state of mind of their client and then if subsequently requested to provide an affidavit I find it strange that they first refuse and then decide (after being contacted by Probate office) to agree but charge a fee. I think the whole issue of taking a will (especially from an elderly person) is crazy as it stands. The solicitor is only too happy to accept the fee for the will but has no medical history of the person making it!



I don't understand the point you are making. 

Old people should not make wills? Solicitors should not make wills with old people? Old people should arrive with a medical cert. before they can be allowed to make a will? Solicitors should not charge for an affidavit of mental capacity? Because they should have  done one at the time? 

You should try ascertaining mental capacity with clients sometime and see how difficult it can be. I have clients in their 90's who are as sharp as razors and equally clients, very considerably younger, where I would not take instructions.

mf


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## mat (27 Jan 2010)

I think it should be a requirement that a person making a will should present a medical cert ( they do this in Canada I believe) so as to avoid the ridiculous running round in circles when there is a query of this nature, if you take a will, happy obviously taking it that the person is of sound mind why then would you refuse an affidavit? And then change your mind!! First experience with a solicitor and not a good one too many questions I know but glaringly obvious problems with making a will in my opinion!!


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## MOB (27 Jan 2010)

I don't know if such rules apply in Canada, but in any event the alternative proposed, of course, involves a scenario whereby people who suddenly feel the need to make a will would face a delay while they first get themselves medically certified.  

Overall, I cannot see that this would represent a nett improvement to the situation.  

Many wills would not get done that needed to get done, and aggrieved beneficiaries would no doubt want to sue doctors for not getting the examination done promptly, or not getting the certificate issued immediately after the examination and so on.  Our system functions reasonably well; the solicitor is entitled to charge for his\her work in preparing\reviewing his notes and executing the affidavit.  It's not a biggie.  It does not seem at all reasonable to expect that this would be done at nil cost. 

 I rather suspect that OP may have had some, ahem, communications difficulties with the solicitor and that it was this rather than any point of principle which prompted the initial refusal.


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## z104 (28 Jan 2010)

A solicitor normally charges €10 per signature.


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## mf1 (28 Jan 2010)

Niallers said:


> A solicitor normally charges €10 per signature.



Rubbish. 

That is for witnessing someone's signature. Not for dragging out an ancient file, preparing and drafting an Affidavit of Mental Capacity, swearing it and furnishing it. 

mf


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## z104 (28 Jan 2010)

mf1 said:


> Rubbish.
> 
> That is for witnessing someone's signature. Not for dragging out an ancient file, preparing and drafting an Affidavit of Mental Capacity, swearing it and furnishing it.
> 
> mf


 
If you phone around you will find that a solictor will charge €10 per signature. Now , if there is more work than just signing then of course they will charge for the work they have done. Dragging out an ancient (5 year old file)
isn't exactly a time consuming job. He/she goes to the filing cabinet and looks under such and such a surname and pulls out the file and looks at his notes. Yep that person was of sound mind as far as I could tell when I did up the will. I will swear an affidait for that.


As for preparing an affidavit, Most of these can be done from a saved template. They don't have to write up a new one everytime. It more like using a template and changing or adding as required. Not rocket science.


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## mf1 (28 Jan 2010)

And you would, in your capacity as a Practicing Solicitor, charge €10 for doing this? 

Assuming that you keep all your old files, in your office and not off site, and that you are regularly called on to swear Mental Capacity Affidavits. 

Yep, you're right - its not rocket science. I think the solicitor should actually pay the executor for not having done the affidavit at the time. 

mf


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## z104 (28 Jan 2010)

You are misrepresenting me. I said if you phone around you will clearly see that a solicitor will charge €10 per signature.


If you read the OP correctly you will see that the solicitor wasn't asked to submit a medical affidavit. He was asked to swear that at the time in his opinion the person making the will was of sound mind.

The solicitor should have done the affidavit at the time the will was arranged. I'm sure he charged a nice fee for doing up the will so he should not charge anymore in my opinion.


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## mf1 (28 Jan 2010)

Niallers said:


> You are misrepresenting me. I said if you phone around you will clearly see that a solicitor will charge €10 per signature.
> 
> 
> If you read the OP correctly you will see that the solicitor wasn't asked to submit a medical affidavit. He was asked to swear that at the time in his opinion the person making the will was of sound mind.
> ...



It was an affidavit of mental capacity. 

Why- having read the posts - do you think 

(a) The solicitor should have done the affidavit at the time the will was arranged

and (b) how do you know 

I'm sure he charged a nice fee for doing up the will so he should not charge anymore in my opinion.

"When the work of the lawyer is described as processing forms, it usually means that the work is held in relatively low esteem and the fees perceived to be high"

Does this ring any bells?

mf


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## z104 (28 Jan 2010)

It rings some bells becuase it's sometimes true that it is a matter of processing forms.

In my case it was exactly just that . Shuffling some forms. Don't make out that everything a solicitor does is some archaic ritual that only some can do.

I think some solicitors hold themselves in undeserved high esteem.

To answer your question. If the solicitor swore an affidavit at the time then he would not have had a need to do one now when it's not fresh in his mind whether the man was of sound mind in his opinion.


A medical affidavit/mental capacity affidavit is sworn by a medical practitioner not a solicitor. It's witnessed and signed by a solicitor


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## mat (28 Jan 2010)

@ MOB no there were no communication difficulties with the solicitor at all, except the following: on first approaching him and asking him ,verbally by way of phone call, if the person was, in his opinion, of sound mind at the time of making the will, the solicitor answered, in these exact words "of course they were" in a very adament tone! About 3 weeks later when asked (once again over the phone) to sign an affadavit to this effect (as requested by probate office)the answer was a very blunt no. Suddenly there was a change of heart when the probate office intervened. Prior to this he had tried to muscle in on getting the job of filling in the probate papers and suggested that the executor wouldnt manage on their own, - which they did manage to do, and very well! I think he was just peeved that he didn't get the job! Any self respecting holder of files should be able to access their records easily enough I would have thought, and the draft that we have seen is only a few lines long. I would have thought that €50 or thereabouts would have sufficed?


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## mf1 (28 Jan 2010)

"A medical affidavit/mental capacity affidavit is sworn by a medical practitioner not a solicitor. It's witnessed by a solicitor "

Oh, deary me. You are quite incorrect. Again. If you read the posts above you will see: 

"The relative wasnt attending any doctor at the time of the making of the will so none of the doctors or consultants they attended subsequently want to sign anything"

And in those circumstances, a solicitor will do one. 

Not all elderly clients have dementia or die with "dementia" noted on their Death Certificates. 

"I think some solicitors hold themselves in undeserved high esteem."

Now, just where did that come from? I wonder. 

mf


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## mf1 (28 Jan 2010)

"I would have thought that €50 or thereabouts would have sufficed? "

Put us out of our misery and tell us how much the fee is. You know. Its in the letter. 

mf


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## mat (28 Jan 2010)

The fee is €120 -  what got me was the fact that he changed his mind so radically and then decided to charge, what I thought, was a little over the odds for the document. My initial query was, which got a little lost amongst the posts,  is there a standard fee for providing the affidavit ? If not well thats it then, its not like we can go anywhere else!


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## mf1 (28 Jan 2010)

For what its worth: 

1. Its not unreasonable
2. Its about average
3. It gets the job done. 
4. It won't break the bank. 

mf


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