Contesting A Will

[GoldWings]

I understand this will probably be more complex, but from the outside:

Dad made a will. I'm not sure when. He did it of his own accord. Maybe possibly 2012/2013/2014.

In mid 2015 he initiated enduring power of attorney with me and another sibling as joint attorneys.

In 2021, deemed non compis mentis and EPOA now progressing.

Brother has told sister he will contest the will. (Estate about 300k).

When initiating EPOA, a GP signed a statement to say dad was of sound mind and knows what's happening, in 2015.

Does this ensure that the will cannot be contested on the grounds of dad not being capable at the time of making the will? I can't say for sure, but if there was something written in his medical records, pre 2015, that states he has vascular dementia, would that cause an issue? Would there then be grounds for saying dad was not capable at the time of making the will.

 

[Johnno75]

Does this ensure that the will cannot be contested on the grounds of dad not being capable at the time of making the will? I can't say for sure, but if there was something written in his medical records, pre 2015, that states he has vascular dementia, would that cause an issue? Would there then be grounds for saying dad was not capable at the time of making the will.

A will can always be contested. The issue is whether the person contesting the will can succeed.

The fact that at the time of the execution of the enduring power of attorney a doctor certified that the testator was of sound mind is a strong defence to any such litigation if the will was made before that.

The fact that your Dad may have been recorded as having been diagnosed with vascular dementia may be something your brother will undoubtedly seize upon in support of his claim but if the doctor who certified your Dad as of sound mind for the EPOA will so certify at trial, this should be enough to see off the claim. But it all depends on your Dad's state of mind at the time the will was executed and how advanced the dementia had progressed at the time.

 

[ClubMan]

You can't stop anybody contesting a will.
All you can do is have whatever factual evidence might help clarify matters readily available.
In this case I guess that this means his medical file and the GP's statement that he was compos mentis when he made the will.
I'm not sure that you can do anything else.

If the will could legitimately be challenged on the basis that he may not have been compos mentis then presumably the later EPOA could be too?

 

[SDMXTWO]

I thought all involved had to agree on who was taking the role of EPA through a solicitor's letter. In my own case we all had to sign that all was above board.

 

[ClubMan]

I thought all involved had to agree on who was taking the role of EPA through a solicitor's letter. In my own case we all had to sign that all was above board.

You mean all of the children?
No mention of that here:

Enduring power of attorney

Power of attorney is a legal device in Ireland that can be set up by a person (the Donor) to allow another specially appointed person (the Attorney) to act on their behalf. An enduring power of attorney only takes effect when the donor becomes mentally incapacitated and no longer able to...

www.citizensinformation.ie

At least 2 people must be notified of the making of an EPA, none of whom will be the attorney. One of the notice parties must be your spouse or civil partner if living with you. If this does not apply, one of your notice parties must be your child. If neither is applicable, one of the notice parties must be any relative (that is parent, sibling, grandchild, widow/widower/surviving civil partner of child, nephew or niece).

 

[GoldWings]

I thought all involved had to agree on who was taking the role of EPA through a solicitor's letter. In my own case we all had to sign that all was above board.

You must have been 1 of the 'Notice Parties'
As ClubMan explains, 2 people must be notified.

 

[Peanuts20]

In my own case, where I put an EPOA in place with my mother the GP had to certify that she was of sound mind, her solicitor met with her and asked her if she was clear what she was doing (she was) and my wife and my sister's husband had to confirm in writing that they were aware that an EPOA was being put in place. Hence it is open and transparent and will be difficult to overturn

however, in this case, the will was made prior to the EPOA was put in place so your brother will have to prove due cause for getting the will over turned, no simply the EPOA. Was there any medical issues at the time the will was written? That is perhaps more important then the EPOA

Secondly, bear in mind your brother could also shout undue influence by you and the other attorney. I'm presuming, in the circumstances, he is aware of what the will states and is not happy

 

[GoldWings]

Thanks Peanuts20
Same here- I was asked to leave the office while the solicitor spoke privately to dad about the matter and confirmed that all was above board. I am not aware of what may or may not be documented in GP files at the time up to the will being made. I suppose we will have to wait and see. The other attorney is not in Ireland, see. The reason for selecting him was for that - there could be no grounds of stating undue influence as there isn't. We both have our father's best interests in mind. I also do not live in the same county as my father, yet I have managed to put in care visits for him, which is working well and dad seems happy with it.

In all, I think in terms of mental capacity, that may not be sufficient grounds. But there may be other grounds in which it could progress I guess. Thanks for your comments.