Valid or invalid Will?

camper

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Will made at hospital bedside. Testator terminally ill, hours from death, on morphine, no solicitor present or medical opinion sought. executor one of main beneficiaries and also person who wrote this Will. Previous Will made which differs greatly from Will while terminally ill. Testator marked with illegible scrawl and witnesses stated not read back to her (the testator). If I was to lodge caveat would Probate request information from executor and(also will writer) to explain circumstances how this Will was made.

Hope this on correct thread as i have attempted this notice on two previous occasions.
 

mf1

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The purpose of a caveat is to notify the probate office that you intend to oppose an aspect of the will. The Probate Office is not concerned with the particulars of your challenge. However, by notifying them of the caveat they are obliged to notify you of when they intend to grant probate, at which time you and your solicitor will be notified to act to challenge the will and prevent the grant of probate from being made. The caveat effectively buys the applicant extra time to research their case.

mf
 

DirectDevil

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+1 mf1.

FYI see this link to courts.ie about caveats.
Go to part XIX - paragraphs 41 to 51 inclusive.
Note in particular that caveats have time limits (6 months) but they can be renewed.
If lodging a caveat do it rapidly to avoid a fast one being pulled.

The basic rules on wills are within the Succession Act 1965.
Link http://www.irishstatutebook.ie/eli/1965/act/27/enacted/en/html
The relevant parts are in Part VII sections 76 to 100.

On the wider issue you will carry the burden of proof if you are the one arguing that the will is invalid and to be condemned.
This type of case can get very expensive if you go the full distance to a hearing.
Probably best handled by a solicitor but keep an eye on the costs.
 

camper

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Thanks for all replies to my query Valid or Invalid Will? The meaning of my question was to gauge if a Will was not properly attested to by witnesses do the Probate office simply refuse this Will and treat under the rules of intestacy or do they refer to the judge of Probate Court for such ruling?
 

mf1

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And someone makes random allegations about the execution of a will and expects the High Court/Probate Office to ride into town guns a blazin?

If someone has serious concerns about the validity of a will, they take proper legal advice and considers whether to challenge it .

mf
 

camper

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sorry mf1 but I believe you misunderstood my question. I don't expect in any way the Probate Office to have "blazin guns" as you describe. My question was simple. If a Will has not been drawn up to meet all requirements of 1965 succession act do Probate treat as intestacy or do they refer to Probate Court judge to make a ruling.
 

noproblem

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I'd imagine that it's up to you to employ a solicitor and find out if the will is invalid or not. Why would you expect the probate office do that?
 

camper

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There most certainly must be instances when Probate find that certaon Wills do not meet the requirements of the 1965 succession act and don't have anyone to object to them. Do the beneficiariesame still gain in full if Will clearly invalid that is answer I am seeking. Thanks
 

Thirsty

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Aside from your evident opinion on the proceedings, who says the will is invalid?
 

mf1

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Much as it pains me to advise someone who won't listen...................

The Probate Office may decline to grant Probate without Affidavits of Attesting Witnesses, Medical Reports etc.,etc.

In that case, the Executor may look for a Court order to prove the will.

As the beneficiaries under the earlier will stand to gain if the later will fails, they should be getting in there with legal advice straight away.

mf
 

camper

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Thank you mf1. you have answered that probate may refuse Probate if Will not properly attested to.
 

Curlywurly

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If on the face of it the will complies with Section 78 Succession Act 1965 the Probate Office will have no reason to query it
So if you are unhappy with the manner in which the will was executed you will have to initiate legal proceedings yourself.
If on the face of it the will does NOT appear to comply with Section 78 Success Act the Probate Office may request an Affidavit from one of the witnesses. This Affidavit must cover due execution of the will i.e. That the will was signed by testator in the presence of two witnesses and then signed by the witnesses in the presence of the testator. If testator signature is feeble or illegible the Probate Office may request the witness to explain why in the affidavit and whether will was read over and if so by whom, and whether testator appeared of sound mind and appeared to understand same.
If the Affidavit of attesting witness cannot confirm due execution the Probate Office will request an affidavit from the 2nd witness. If neither witness can confirm due execution the Probate Officer will make an order refusing Probate of that will. The previous will can then be proven. It is generally only when the death cert shows dementia or Alzheimer's or an illness which may affect testamentary capacity and the will was made a short time before death that the Probate Office MAY request an affidavit of testsmentary capacity from doctor who was treating testator at time of execution of will. It is not always requested . Again if you believe testator lacked testamentary capacity you should initiate legal proceedings without delay as the onus is on the person objecting to prove testator did not have capacity to make a will at that time.
Hope this is helpful. Best of luck whatever you decide to do.
 

camper

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Thank you Curlywurly for your extensive explanation. I now have my 3rd caveat lodged and to date the executor has not as yet requested Probate to demand a appearance from me which is strange as Will has been lodged for Probate since May of 2018. Do you have opinion on that. Thanks.
 

Gordon Gekko

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Thank you Curlywurly for your extensive explanation. I now have my 3rd caveat lodged and to date the executor has not as yet requested Probate to demand a appearance from me which is strange as Will has been lodged for Probate since May of 2018. Do you have opinion on that. Thanks.
Shouldn’t you get legal advice rather than relying on the thoughts of anonymous AAM contributors? Your issue seem to be very real rather than theoretical.
 

Curlywurly

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To my knowledge the purpose of a Caveat is as set out by Mf1 in post no 2 on this thread. While it does prevent the Grant of Probate issuing my understanding is that if you are serious about the manner in which the will was executed or the testamentary capacity of the testator you need to initiate proceedings in court to challenge the will. You really need legal advice for that part of the process. I believe it is only at the final stage when the Probate officer is satisfied with everything in the application and the Grant is ready to issue that a check is made for caveats. That starts the procedure of the Probate Office notifying the applicant of the existence of the caveat who should then contact the person who lodged the caveat. Maybe the application has not got to this final stage yet - it is possible there are still unanswered Probate Office queries outstanding.
 

camper

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If I were to check on Irish probate website is there a section whereby I can check for Wills lodged for probate. I believe that i may have read such a section in recent past but as of the present I am having difficulty finding again. Any assistance anyone. Thanks
 
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