Question regarding wills

nesf

Just a general question. On oasis this is quoted in regards to the "soundness of mind" requirement for a will:

It is your mental condition at the time you made your will is that legally relevant. If you suffer from any mental disorder, it is important that evidence is left with your will (for example, from a doctor) that proves you were mentally competent at the time you made the will. Otherwise, your will can be open to challenge.

How exactly does the law define a mental disorder? Is there a strict legal definition for it in this country?

Stretching beyond that, if a common garden variety mental disorder is considered to mean that an individual is not sound of mind, would it be legal for a pharmacy to sell them their medication? If the pharmacist is selling them this medication are they not recognising that the person may not be of sound mind? I realise it's not a very black white part of the law but still, this amuses me.

Stirling

This is not to be construed in any way, shape or form as Legal Advice or as an interpretation of the Law. Now having said that...

It is a very interesting question!

As far as the Law on Wills goes I think Oasis has paraphrased from the Succession Act 1965 and unfortunately has done it quite badly.

There are a number of sections in the act dealing with issues relating to capacity, such as age and how that can be altered as a consequence of marital status. The issue of mental capacity is dealt with by s77 of the 1965 Act.

Here it requires that one be of

"...sound disposing mind"

at the time that one makes a will not that one be of

"...sound mind"

It is here that Oasis gets it wrong I think because in a number of cases where the validity of Wills has been questioned Wills have been upheld even where the a person might be of unsound mind in some ways but where it was determined that they were in a sound mind vis a vis their ability to deal with their property then that was sufficient to satisfy the requirements of s77. As they rightly state the correct time for evaluation of mental state is at the time that the Will was made so this could also leave open the way for so called "lucid intervals".

There is no definition of soundness of mind in the Succession Act so to answer your question I don't believe that there is a strict legal definition for a mental disorder in the context of Wills and Probate and instead has been left up to the courts to determine on a case by case basis.

As for the hypothetical situation which you raise involving a pharmacist I think you should be aware of the fact that Law has few "Standard Pack Definitions" which can be applied in a variety of contexts and so where one may be of sound disposing mind in one sense of the word this may not neccesarily be the case where a different transaction is involved.

I know nothing about the Law relating to the dispensing of drugs so perhaps someone might give us some ideas!

nesf

I find it interesting from a number of viewpoints, mainly since what is considered to be a "mental disorder" is a very loose term. With psychiatry "finding" more and more mental disorders as time marches on I'm curious as to whether law has adapted to compensate for this. Or whether legal definitions of such are made outside of the bounds of medicine, which is curious to me since it would require a medical practicioner to judge whether a person fell within these bounds and not a legal practicioner.

My second point by the was was just a bit of messing really. I'm sure the law covers the situation adequately.

ruth cannon

It is very difficult to prove unsoundness of mind for the purposes of challenging testamentary capacity. There are two (relatively) recent cases on this, which you may be able to get on www.bailii.org, the judgment of Kelly J in O'Donnell v O'Donnell and the Supreme Court judgment in Blackall v Blackall (the famous Blackall sisters case). You would need strong medical evidence of a psychiatrist to win a challenge on this basis. In O'Donnell, the testator was actually schizophrenic, but was held to have been of sound mind on the basis that he had been taking his medication regularly, and that this was capable of controlling his condition. Kelly J looked at the will and felt that it looked sensible in the circumstances. If it had been off the wall, he might have decided differently. Remember the Blackall sisters lost their inheritance in legal costs alleging unsoundness of mind - these cases can be very expensive, so should not be taken unless there is a good chance of winning. The person alleging unsoundness of mind bears the burden of proof.

ruth cannon

I've just had a look at O'Donnell (which is available on bailii) again and the test applied there by Kelly J was that laid down by Cockburn C.J. in Banks -v- Goodfellow (1870) LR 5 QB 549, 565 as follows:

"It is essential that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing, shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties:- that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made".

This is of course a test of sound mind - in order to defeat it the person alleging unsoundness of mind must show that one or more of the factors listed above were NOT present.

In practice a lot tends to hang on the medical evidence.

Stirling

Ruth I bow to superior knowledge (your book was a major help to me when I was an Undergrad! )

Just wondering in a hpothetical case where a person drafting a will obtained an affidavit from the Doctor of the testator re soundness of mind of the testator might this be enough to satisfy the requirement if a challenge was mounted?

Again purely hypothetical it's just something that might be a pre-emptive from a careful drafter.

Gobán Saor

John Grisham, ahem, had one of his characters arranging to videotape the signing of his will in the presence of a psychiatrist and lawyer. Should put things beyond doubt (if the testator IS actually of sound disposing mind!)

ruth cannon

I wouldn't necessarily say my knowledge is superior - most people on this forum appear to be pretty expert! But I am glad that you found (or are kind enough to pretend you found) the book useful, it is well out of date now - I am waiting to see what will happen with the Land and Conveyancing Reform Bill 2006 before I update it.

I can foresee one difficulty with the affidavit and that would be if the psychiatrist who swore it had died before the unsoundness proceedings - could it be brought in under an exception to the hearsay rule on the basis it was a declaration made in the course of duty? In Somers v Erskine [1944] IR 368 solicitors' notes of instructions from a client were admissible on this basis - it would seem to me this should apply to doctors' declarations as well.

I note though that for wardship proceedings the evidence of two doctors is necessary to show lack of mental capacity, and this might be a good guideline here (maybe a consultation with a psychiatrist, then a visit to the GP the day before making the will). If there is doubt as to the admissibility of written notes/affidavit, one of the doctors should be fairly young to reduce their chances of death pre-trial.

I would also suggest that the implications of the will be discussed by the solicitor with the testator in the presence of another solicitor in the firm; a note should be made of the discussion and the deceased's understanding of it and this should be signed by both of them.

However this procedure should only be necessary in the case of elderly patients or patients with a mental disorder or (possibly) if the will is really wacky.

One thing which may come up in the courts in the future is the issue of a will made by a person with early-onset Alzheimers - it will be interesting to see how they deal with this issue.

ruth cannon

Video wills are valid in the US but not in Ireland so it is not enough for the testator to video himself reading out the terms of his will - he will have to execute a written will as well. Re videotaping the execution of this written willl - this might work - provided that you could persuade a civil judge to admit video evidence, not an easy task unless you are in the Commercial Court - but you would want to adopt a strategy to avoid any allegation of selective editing.

This isn't strictly speaking relevant to wills, but your John Grisham story reminded me of "Changing Lanes" Ben Affleck/Morgan Freeman. In this film there is a great scene where an original document has been lost, some dishonest person (we won't mention his profession) gets out a draft of the original document, takes the back page from another document executed by the same client, and staples them together. This could potentially happen with a will as well - unless of course there is some text on the back page. Since then Section 78 of the Succession Act 1965, which says it's not necessary to have a disposing part of the will on the same page as the signature - has always worried me.

Jo King

If you have a doubt on that point, ink can be forensically dated. If the two pages were created at different times , the test should reveal this. One of my favourite legal anecdotes was btold to me by a long established barrister from her devilling days. A will was produced signed iun the 1940s. An eagle-eyed SC spottedc that it had been signed in biro. He called a witness from the biro company who was able to establish that biros had not been on sale at the time in Ireland.