Some disputing wills ready to have legal costs exhaust entire estate, judge says

Probate Bar Association conference hears of doctors’ concerns about capacity assessment requirements under new law

Some people who challenge wills are prepared to have legal costs use up the entire value of a deceased’s estate simply to prevent anyone else from getting it, a senior judge has said.

One case involved two brothers fighting over a farm with a nominal value of €60,000 and the claims included lack of capacity of the testator, forgery and evidence from handwriting experts, Ms Justice Nuala Butler said.

It seemed one brother “who had done all right in life” was going to use up the value of the estate before the other brother got anything.

She said many will disputes are due to family issues, including poor relations between siblings, unresolved issues concerning first and second spouses, a testator singling out one sibling or a family feeling displaced by another person getting what they regarded as their rightful inheritance.


Capacity issues

She was pleased to see some solicitors work together in disputed cases in an effort to reduce the costs impact on the value of the estate, the judge added.

Ms Justice Butler presided for some 18 months over the High Court’s probate list before being appointed a judge of the Court of Appeal last October. On Friday, she opened the inaugural conference of the Probate Bar Association, which focused on capacity issues.

Probate law is quite technical but is balanced by a human element because it is all about relations between people, “how they build up, how they fall apart, how families deal with the loss of people”, she said.

The saddest cases are where a solicitor comes to court looking for relatives of a client who has not made a will and who has nobody in terms of close family, nobody to whom they are close enough to make a will and leave everything to, she said. Other categories of cases include ones concerning lost wills and testamentary capacity, she outlined.

The more difficult category of lost will cases arose where the will was lost in the hands of a testator and this was even more problematic if a will was handmade because there was generally no record of it outside of claims about it by family members.

Grant of probate

In relation to cases concerning testamentary capacity, the average age of the deceased was in the late 80s or early 90s. With increased age comes increased frailty, both physical and mental, she said. There is an increased recognition capacity is “not a black-and-white issue”, that a person can have reduced capacity in some areas but may still have testamentary capacity.

The Probate Office, she noted, is reluctant to issue a grant of probate where a death certificate indicates dementia or similar condition within six years of the date of a will unless there is an affidavit concerning capacity from a solicitor or doctor.

There is a particular reluctance among doctors to provide affidavits unless they have personally assessed capacity at the time the will is made, she said. This created difficulties when a court is trying to build a picture of a testator for the purposes of deciding whether they had capacity or not.

Áine Flynn, director of the Decision Support Service, to become fully operational when the Assisted Decision-Making Capacity Act is fully commenced, outlined the core provisions of the Act, including a presumption of capacity.

Prof Rónán Collins, consultant physician and director of stroke services at Tallaght University Hospital, said many in the medical profession welcomed the Act but it posed major challenges, including whether there would be enough resources to carry out the amount of capacity assessments that would take place. It is “a massive ask”, he said.

Other speakers included barristers Catherine Duggan, Susan O’Connell and Michael Hourican SC.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times