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Contesting a will, capacity

2

Comments

  • #52
    beauf
    Closed Accounts Posts: 22,648 ✭✭✭✭beauf


    EmilyBClare wrote: »
    I don't think there would be any issue in either of us agreeing to transfer the land over, we don't want it but why should we?

    Genuine question.

    If something is handed to someone for nothing, it is never appreciated.

    Also you must appreciated how bad a character my brother has, he is unfortunately a very spiteful person and I feel like making any bargin with him would not be worth it.

    He is a toxic person, I have tried to cut him out of my life for the sake of my mental health and it has worked, for a time, but now this constant back & forth has me down. My dad was a great friend to me, we were very close and I am still coming to terms with his loss.

    I have even considered walking away from the will and leaving the inheritance to my other brothers.

    The hassle isn't worth it.

    Assign the administration of the estate to the solicitor. Then you only have to deal with the solicitor not the brother.

    I think money spent on a solicitor would be well spent.

    Parents should be aware that leaving unequal split's of inheritance and property split between children leaves behind a huge headache.


  • #53
    Peregrinus
    Registered Users, Registered Users 2 Posts: 26,678 ✭✭✭✭Peregrinus


    EmilyBClare wrote: »
    I don't think there would be any issue in either of us agreeing to transfer the land over, we don't want it but why should we?

    Genuine question.

    If something is handed to someone for nothing, it is never appreciated.

    Also you must appreciated how bad a character my brother has, he is unfortunately a very spiteful person and I feel like making any bargin with him would not be worth it.

    He is a toxic person, I have tried to cut him out of my life for the sake of my mental health and it has worked, for a time, but now this constant back & forth has me down. My dad was a great friend to me, we were very close and I am still coming to terms with his loss.

    I have even considered walking away from the will and leaving the inheritance to my other brothers.

    The hassle isn't worth it.
    The question is how you disentangle yourself from this situation at minimum emotional and financial cost.

    The answer is, if you're willing and your co-owner is also willing, simply give the land to the brother in occupation. There'll be a cost; if this is done co-operatively the cost can be minimised.

    Sure, he may not appreciate it, but so what? Your goal here is not to be appreciated, but to put an end to a potentially toxic, draining situation. Don't be distracted from that goal.

    Your other option, as you recognise yourself, is to disclaim your own interest in this land and leave the others with an interest in/claim to the land to slog it out between themselves. But, while you wouldn't be directly involved, that still leaves a toxic row unfolding in your immediate family, which could indirectly affect you. So that's a less good outcome.

    I understand your grief for your father, and I am sincerely sorry. But this mess, it has to be said, is part of your father's making. He let your brother occupy and use the land for I think a long period of time, and then he bequeathed that land to you and your other brother. How did he think that would work out?

    I imagine the answer is that he didn't think. But I can't imagine that he wiykd have wanted to cause you pain and additional grief, so I think deal with this land in whatever way will make you happiest.


  • #54
    Peregrinus
    Registered Users, Registered Users 2 Posts: 26,678 ✭✭✭✭Peregrinus


    beauf wrote: »
    Ah make sense. But he doesn't have to.
    He doesn't have to because he has refused to buy it. If he bought that bit of land with the brother in occupation of it, then he would obviously have to deal with the brother. His (wise) reluctance to deal with the brother is the reason that bit of land was excluded from the sale.


  • #55
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    beauf wrote: »
    Assign the administration of the estate to the solicitor. Then you only have to deal with the solicitor not the brother.

    I think money spent on a solicitor would be well spent.

    Parents should be aware that leaving unequal split's of inheritance and property split between children leaves behind a huge headache.

    a massive headache!


  • #56
    beauf
    Closed Accounts Posts: 22,648 ✭✭✭✭beauf


    Peregrinus wrote: »
    He doesn't have to because he has refused to buy it. If he bought that bit of land with the brother in occupation of it, then he would obviously have to deal with the brother. His (wise) reluctance to deal with the brother is the reason that bit of land was excluded from the sale.

    So the buyer is irrelevant really.

    It just how to transfer ownership of the land to that brother. With the minimum of hassle. He won't want to pay tax on it, I think thats why he's going wants to disrupt everything. Or maybe he just wants to do that anyway.

    I've a sibling a bit like that. Every contact with them is torture.


  • #57
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    Peregrinus wrote: »
    He doesn't have to because he has refused to buy it. If he bought that bit of land with the brother in occupation of it, then he would obviously have to deal with the brother. His (wise) reluctance to deal with the brother is the reason that bit of land was excluded from the sale.

    It was a local neighbour that bought the land, he had been renting it from my father for year so he got first refusal. He took the land but didn't want to have to deal with the other brother and was happy to leave that piece of the folio off the sale.


  • #58
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    Thanks you @peregrinus for such good advise.

    The goal, as you said, is to disentangle myself from this situation at minimum emotional and financial cost.

    I never thought that when Dad passed, land..money etc would become such a prize to the family.


  • #59
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    Peregrinus wrote: »
    The question is how you disentangle yourself from this situation at minimum emotional and financial cost.

    The answer is, if you're willing and your co-owner is also willing, simply give the land to the brother in occupation. There'll be a cost; if this is done co-operatively the cost can be minimised.

    Sure, he may not appreciate it, but so what? Your goal here is not to be appreciated, but to put an end to a potentially toxic, draining situation. Don't be distracted from that goal.

    Your other option, as you recognise yourself, is to disclaim your own interest in this land and leave the others with an interest in/claim to the land to slog it out between themselves. But, while you wouldn't be directly involved, that still leaves a toxic row unfolding in your immediate family, which could indirectly affect you. So that's a less good outcome.

    I understand your grief for your father, and I am sincerely sorry. But this mess, it has to be said, is part of your father's making. He let your brother occupy and use the land for I think a long period of time, and then he bequeathed that land to you and your other brother. How did he think that would work out?

    I imagine the answer is that he didn't think. But I can't imagine that he wiykd have wanted to cause you pain and additional grief, so I think deal with this land in whatever way will make you happiest.
    beauf wrote: »
    So the buyer is irrelevant really.

    It just how to transfer ownership of the land to that brother. With the minimum of hassle. He won't want to pay tax on it, I think thats why he's going wants to disrupt everything. Or maybe he just wants to do that anyway.

    I've a sibling a bit like that. Every contact with them is torture.

    Exactly, he wants to do it anyway - both him and his wife have this outlook on life as to whom they can annoy or upset next. I walked away years ago for sake of my health. I couldn't be around people like that.


  • #60
    beauf
    Closed Accounts Posts: 22,648 ✭✭✭✭beauf


    People show the true colors. When it comes to money, it seems money is thicker than blood.


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  • #61
    ohnonotgmail
    Registered Users, Registered Users 2 Posts: 40,513 ✭✭✭✭ohnonotgmail


    EmilyBClare wrote: »
    Exactly, he wants to do it anyway - both him and his wife have this outlook on life as to whom they can annoy or upset next. I walked away years ago for sake of my health. I couldn't be around people like that.

    It might be easier from a personal point of view to just give him the land and be done with it. Like removing a plaster. Just rip it off and get it over and done with rather than dragging it out over a longer period.


  • #62
    beauf
    Closed Accounts Posts: 22,648 ✭✭✭✭beauf


    EmilyBClare wrote: »
    Exactly, he wants to do it anyway - both him and his wife have this outlook on life as to whom they can annoy or upset next. I walked away years ago for sake of my health. I couldn't be around people like that.

    If he is well off, (I get the impression he is) he might be happy to cut the nose of his face to annoy everyone else.

    Would it be an idea to get the solicitor to draft up an agreement to transfer the property to him after the estate is distributed. Sent it to his solicitor. Then park it. If you don't care about the inheritance any delays aren't really effecting you. Unless of course there is tax building up for you.


  • #63
    beauf
    Closed Accounts Posts: 22,648 ✭✭✭✭beauf


    ohnonotgmail wrote: »
    It might be easier from a personal point of view to just give him the land and be done with it. Like removing a plaster. Just rip it off and get it over and done with rather than dragging it out over a longer period.

    I think the issue is how to do that. They can't do that until the estate is distributed. He seeking to block that.

    He sounds like the kind who would run up a 100k solicitor bill over a 10k inheritance.


  • #64
    ohnonotgmail
    Registered Users, Registered Users 2 Posts: 40,513 ✭✭✭✭ohnonotgmail


    beauf wrote: »
    I think the issue is how to do that. They can't do that until the estate is distributed. He seeking to block that.

    He sounds like the kind who would run up a 100k solicitor bill over a 10k inheritance.

    Just put it to him. via a solicitor.


  • #65
    CoBo55
    Registered Users, Registered Users 2 Posts: 9,315 ✭✭✭CoBo55


    ohnonotgmail wrote: »
    My mother created a will and an EPOA after her diagnosis. Her gerentologist had to confirm that she had the capacity to do so. there is no grey area.

    Once again someone not reading what I wrote. I said it would be foolish of a solicitor/witness to rubber stamp that will. In your mother's case they didn't, they got her gerentoligist involved making sure they weren't leaving themselves open to a challenge when she died.


  • #66
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    beauf wrote: »
    If he is well off, (I get the impression he is) he might be happy to cut the nose of his face to annoy everyone else.

    Would it be an idea to get the solicitor to draft up an agreement to transfer the property to him after the estate is distributed. Sent it to his solicitor. Then park it. If you don't care about the inheritance any delays aren't really effecting you. Unless of course there is tax building up for you.

    He is well off, exactly.

    This is something he is enjoying folks, trust me, letters to the solicitors to annoy my family are the highlight of his week.

    Delays aren't affecting me at all, the revenue has ben paid. The point is to draw a close on this so I can move on.


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  • #67
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    beauf wrote: »
    I think the issue is how to do that. They can't do that until the estate is distributed. He seeking to block that.

    He sounds like the kind who would run up a 100k solicitor bill over a 10k inheritance.

    He is exactly that type.


  • #68
    CoBo55
    Registered Users, Registered Users 2 Posts: 9,315 ✭✭✭CoBo55


    EmilyBClare wrote: »
    He is well off, exactly.

    This is something he is enjoying folks, trust me, letters to the solicitors to annoy my family are the highlight of his week.

    Delays aren't affecting me at all, the revenue has ben paid. The point is to draw a close on this so I can move on.

    The thread seems to have taken off on a tangent of land etc. What exactly are his letters to the solicitor saying? What is he actually looking for? The original post said he had doubts regarding your father's mental capacity at the time the will was written, is this still the case?


  • #69
    ohnonotgmail
    Registered Users, Registered Users 2 Posts: 40,513 ✭✭✭✭ohnonotgmail


    CoBo55 wrote: »
    Once again someone not reading what I wrote. I said it would be foolish of a solicitor/witness to rubber stamp that will. In your mother's case they didn't, they got her gerentoligist involved making sure they weren't leaving themselves open to a challenge when she died.

    I read what you wrote. You said it was a grey area. It isn't. There are Law Society guidelines that cover it.

    https://www.lawsociety.ie/Solicitors/Practising/Practice-Notes/Drafting-Wills-for-the-Elderly-Client--Guidelines-for-Solicitors/#.YAV2a-j7Q2w


  • #70
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    CoBo55 wrote: »
    The thread seems to have taken off on a tangent of land etc. What exactly are his letters to the solicitor saying? What is he actually looking for? The original post said he had doubts regarding your father's mental capacity at the time the will was written, is this still the case?

    Dads capacity "as of the date of the said will"


  • #71
    CoBo55
    Registered Users, Registered Users 2 Posts: 9,315 ✭✭✭CoBo55


    ohnonotgmail wrote: »
    I read what you wrote. You said it was a grey area. It isn't. There are Law Society guidelines that cover it.

    https://www.lawsociety.ie/Solicitors/Practising/Practice-Notes/Drafting-Wills-for-the-Elderly-Client--Guidelines-for-Solicitors/#.YAV2a-j7Q2w

    Good link that, thanks. Even in the link it says it can be tricky. If it was my client I think I'd pass. Looks like the op's brother is going to make it extremely difficult. Maybe he does have grounds, his solicitor must think so if he's working for him.


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  • #72
    beauf
    Closed Accounts Posts: 22,648 ✭✭✭✭beauf


    Is there anyway to get it ruled as "vexatious" challenge.


  • #73
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    CoBo55 wrote: »
    Good link that, thanks. Even in the link it says it can be tricky. If it was my client I think I'd pass. Looks like the op's brother is going to make it extremely difficult. Maybe he does have grounds, his solicitor must think so if he's working for him.




    He may have grounds, agreed - I am not from a legal background, so I cant say!?

    My father made his will in private and I never discussed this with him. There was no undue influence from anyone (that I am aware of).

    The brother in question also wasn't speaking to my father at the time the will was made.


  • #74
    CoBo55
    Registered Users, Registered Users 2 Posts: 9,315 ✭✭✭CoBo55


    EmilyBClare wrote: »
    He may have grounds, agreed - I am not from a legal background, so I cant say!?

    My father made his will in private and I never discussed this with him. There was no undue influence from anyone (that I am aware of).

    The brother in question also wasn't speaking to my father at the time the will was made.

    Leave all the not speaking stuff to one side.
    What is his solicitor looking for? Is he actually asking for anything or is it just threats?
    I got threats from family members directly and one communicated via a solicitor, they never asked for anything specifically so myself and the solicitor pushed on and submitted everything required to the probate office.
    I continued to get group type emails from one family member in particular saying I was too stupid to be executor blah blah blah. Nothing beyond that was done so the estate was distributed according to dad's wishes. I wish you luck. Keep you eye on the prize and push on if you can. Make him do the work, not you. Anything he asks for send it to him he seems to think you've something to hide.


  • #75
    ohnonotgmail
    Registered Users, Registered Users 2 Posts: 40,513 ✭✭✭✭ohnonotgmail


    CoBo55 wrote: »
    Good link that, thanks. Even in the link it says it can be tricky. If it was my client I think I'd pass. Looks like the op's brother is going to make it extremely difficult. Maybe he does have grounds, his solicitor must think so if he's working for him.

    I don't think you can presume that at all. Solicitors act on instructions. They send letters with baseless claims all the time.


  • #76
    CoBo55
    Registered Users, Registered Users 2 Posts: 9,315 ✭✭✭CoBo55


    ohnonotgmail wrote: »
    I don't think you can presume that at all. Solicitors act on instructions. They send letters with baseless claims all the time.

    I did say Maybe. Believe me I know that they can send baseless letters, very stressful.


  • #77
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    Thanks so much to you all for the advise and thoughts - if anything, talking it through has been a help. A vent.

    I will keep the this thread updated on how it is all going.

    I will persevere.


  • #78
    BattleCorp
    Registered Users, Registered Users 2 Posts: 11,789 ✭✭✭✭BattleCorp


    How long is your brother occupying that piece of land?


  • #79
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    BattleCorp wrote: »
    How long is your brother occupying that piece of land?

    His home and business are there for up to 20 years, however, the boundary fence has been moving slowly and slowly out over the last 6 years.

    The land isn't the main issue here, its his sense of entitlement.


  • #80
    Vestiapx
    Registered Users, Registered Users 2 Posts: 1,186 ✭✭✭Vestiapx


    EmilyBClare wrote: »
    His home and business are there for up to 20 years, however, the boundary fence has been moving slowly and slowly out over the last 6 years.

    The land isn't the main issue here, its his sense of entitlement.
    If that's the case why did be ask to be left out of the will?
    Did be think be was getting the land and want nothing else or did he not want anything from the will but change his mind.


  • #81
    CramCycle
    Moderators, Sports Moderators Posts: 25,161 Mod ✭✭✭✭CramCycle


    EmilyBClare wrote: »
    His home and business are there for up to 20 years, however, the boundary fence has been moving slowly and slowly out over the last 6 years.

    The land isn't the main issue here, its his sense of entitlement.

    Pardon my French, but your brother sounds like a sh1te.

    My opinion, worth nothing by the way, depends on how you want to go about it but if all he wants to do is cause hassle, nothing may work, in which case just get your solicitor to push ahead with everything as is.

    My understanding is that technically, other than potentially squatters rights, everything else he is on is yours and your brothers.

    Option 1. Push ahead, ignore him and let the solicitor find the easiest way out of it and have the cost of that taken out of the estate. The upsides are you get to stick it to him a bit without having to do much other than read letters and issue instruction. Downside, it could drag a bit with him living on the land and you sound like you just want it closed off.

    Option 2. Get a document drawn up by your solicitor, in conjunction with his, stating you and the brother will hand over that bit of land to him as is, once the will is done. Make sure you get a decent person to do a GPS track of the boundary for submission to the land registry (better than the old school way where they have a fair bit of lee way on the edge of the land in rural areas in my experience). He will have to pay tax on it but he made his bed, and if he hadn't been such a sh1te, he wouldn't have too.

    Just opinions, may not even be legally possible.


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  • #82
    Treppen
    Registered Users, Registered Users 2 Posts: 4,620 ✭✭✭Treppen


    Vestiapx wrote: »
    If that's the case why did be ask to be left out of the will?
    Did be think be was getting the land and want nothing else or did he not want anything from the will but change his mind.

    Maybe he opted himself out of the will to write himself out of the debt owed on the Fair-Deal scheme !!! So with the rest of the other land paying it off, he now declares that the land that was the fathers... is his?

    Just conjecturing here, but it's a very odd thing -vexatiousness aside- to opt yourself out of a will, and then contest the will later.

    Is it a substantial amount owed to the Fair-Deal OP?, although, it sounds like your brother would frame someone out of a penny.


  • #83
    beauf
    Closed Accounts Posts: 22,648 ✭✭✭✭beauf


    Technically they can't remove the land from the fair deal valuation. But you can pay the fair deal many different ways. You don't have to sell the land to do it, if you can afford not to.


  • #84
    Treppen
    Registered Users, Registered Users 2 Posts: 4,620 ✭✭✭Treppen


    I'm just curious (for the sake of discussion)
    beauf wrote: »
    Technically they can't remove the land from the fair deal valuation.

    If the sum total of the land was used for valuation but the brother subsequently claims that a portion of the land was his then wouldn't that portion of it be removed if he is successful with a claim on the land?
    beauf wrote: »
    But you can pay the fair deal many different ways. You don't have to sell the land to do it, if you can afford not to.

    Maybe the original intention was specifically to use the land only to pay for the fair deal after the person is deceased, I think the OP may have mentioned that was the case earlier.

    IF the land wont be used to pay for the fair deal then what money would be used to pay for it?... inheritance money (which the brother doesn't seem to be concerned with).


  • #85
    CoBo55
    Registered Users, Registered Users 2 Posts: 9,315 ✭✭✭CoBo55


    God there's a lot of lads talking ****e here. The op said ages ago fair deal have been paid by the sale of some land. Would be helpful if people actually took the time to read other people's posts and stop treating what's a very difficult and stressful situation like an episode of murder she wrote.


  • #86
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    CoBo55 wrote: »
    God there's a lot of lads talking ****e here. The op said ages ago fair deal have been paid by the sale of some land. Would be helpful if people actually took the time to read other people's posts and stop treating what's a very difficult and stressful situation like an episode of murder she wrote.

    It will be murder she wrote if it drags on much longer ðŸ˜


  • #87
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    Treppen wrote: »
    Maybe he opted himself out of the will to write himself out of the debt owed on the Fair-Deal scheme !!! So with the rest of the other land paying it off, he now declares that the land that was the fathers... is his?

    Just conjecturing here, but it's a very odd thing -vexatiousness aside- to opt yourself out of a will, and then contest the will later.

    Is it a substantial amount owed to the Fair-Deal OP?, although, it sounds like your brother would frame someone out of a penny.

    Agreed, it is a very odd thing. I don’t know why this was asked from my Dad but he took my brother at his word and left him out. I think, from what other brothers have told me was because he was having a good day and decided my dad had done enough for him by giving him a business etc..and he didn’t want anything else!?

    I imagine my dad knew about the boundary moving over the years. I am surprised it was never addressed.

    Fair deal was in region of 45k without going in detail. Land was always going to be sold to pay this.


  • #88
    beauf
    Closed Accounts Posts: 22,648 ✭✭✭✭beauf


    I think people are trying to work out what the point of contesting the will is. Its got nothing to do with the fair deal. I can't see any relevance anyway.

    He may simply just trying to frustrate the siblings for no reason other then he can.


  • #89
    CoBo55
    Registered Users, Registered Users 2 Posts: 9,315 ✭✭✭CoBo55


    beauf wrote: »
    I think people are trying to work out what the point of contesting the will is. Its got nothing to do with the fair deal. I can't see any relevance anyway.

    He may simply just trying to frustrate the siblings for no reason other then he can.

    Op said it was on the grounds of capacity. The brother must think his father wasn't in his full mind at the time the will was written.


  • #90
    Treppen
    Registered Users, Registered Users 2 Posts: 4,620 ✭✭✭Treppen


    Is there any record of the brother requesting to be left out. Or was it just the father who said it?


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  • #91
    beauf
    Closed Accounts Posts: 22,648 ✭✭✭✭beauf


    CoBo55 wrote: »
    Op said it was on the grounds of capacity. The brother must think his father wasn't in his full mind at the time the will was written.

    The father didn't leave him out. The son asked to be left out. So the father's mind is kinda irrelevant no?


  • #92
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    Treppen wrote: »
    Is there any record of the brother requesting to be left out. Or was it just the father who said it?

    The solicitor had a conversation with my dad prior to writing the will, he has those notes on record.

    Also there was a conversation that my Dad had with my uncle (his brother) and they discussed the same thing. The Solicitor also re-confirmed this with my uncle, he has this on record now also. (I am not sure of the details here, sorry)

    It is all there on record in some capacity.

    I suppose when I read back on all this, my brother is contesting a will (questioning my dad's capacity) that he had asked to be left out of in the first place!? Seems like he has had a change of heart!?


  • #93
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    Vestiapx wrote: »
    If that's the case why did be ask to be left out of the will?
    Did be think be was getting the land and want nothing else or did he not want anything from the will but change his mind.

    Seems like a change of mind, or a memory lapse.

    My mother used to always tell me that if you are going to be a liar, you need to have a good memory or it will all catch up with you...


  • #94
    Peregrinus
    Registered Users, Registered Users 2 Posts: 26,678 ✭✭✭✭Peregrinus


    It's possible that the brother thought he was asking to be omitted except for a bequest of the land that he was actually occupying, or that h asked to be omitted in the mistaken belief that he already had rights to that land. The notes may - or may not - show that your father's solicitor raised this issue with him, to establishi what your father expected would happen with regard to his son's continued occupation of the land in question. Did he expect the son would quietly leave? Did he expect that he would remain in occupation and, if so, on what basis? Either way, did he discuss his expectation with the son?

    In short, there are enough obviousl questions here to which we don't have answers to make me think that, if this become litigious, it could become very messy, very expensive and very long-drawn-out. And this would be a great shame, if in fact (a) the son wants the land and (b) you and the other brother are happy for him to have it. If that is what everybody wants then the sooner you can get to the point of making it happen the better.


  • #95
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    Peregrinus wrote: »
    It's possible that the brother thought he was asking to be omitted except for a bequest of the land that he was actually occupying, or that h asked to be omitted in the mistaken belief that he already had rights to that land. The notes may - or may not - show that your father's solicitor raised this issue with him, to establishi what your father expected would happen with regard to his son's continued occupation of the land in question. Did he expect the son would quietly leave? Did he expect that he would remain in occupation and, if so, on what basis? Either way, did he discuss his expectation with the son?

    In short, there are enough obviousl questions here to which we don't have answers to make me think that, if this become litigious, it could become very messy, very expensive and very long-drawn-out. And this would be a great shame, if in fact (a) the son wants the land and (b) you and the other brother are happy for him to have it. If that is what everybody wants then the sooner you can get to the point of making it happen the better.

    Agreed Peregrinus, but he hasn't actually told us what he wants...he is on a general fishing expedition. Hence my original post.

    Asking for CA24's, will testimonies, everything bar what you had for Dinner yesterday. The more you give him the more he picks holes in things and it goes on and on..

    My question is where will it end, the land doesn't seems to bother him as he think he's on it so automatically entitled to it. He can have it as far as I am concerned but at his own costs.

    As far as I am aware, there was no unwritten spoken agreement that he would get the land, my Dad was a good man and had he asked him directly to deal with folios etc he would have obliged.


  • #96
    notsoyoungwan
    Registered Users Posts: 614 ✭✭✭notsoyoungwan


    Peregrinus wrote: »
    An affirmative statement by a doctor that you have the necessary medical capacity is a statutory requirement for making an enduring power of attorney.

    But not for making a will. In the case of a will, the onus is on people who want to challenge the will to show that you didn't have the necessary capacity, not on you or your heirs to show that you did.

    Obviously, if you make both at the same time, the medical statement in relation to the power of attorney will also be evidence that you were competent to make a will, should the will later be challenged.


    It’s not quite as straightforward as your last paragraph. I’m a psychiatrist and I do a lot of these capacity assessments. Someone may have capacity to set up an enduring power of attorney but lack the capacity to make a will at the same time. The capacity assessment for testamentary capacity is more onerous than that for EPOA, which actually has quite a low bar.


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  • #97
    SusanC10
    Registered Users Posts: 2,432 ✭✭✭SusanC10


    Are your brother's house and business premises both on the land in question which is still in your father's name ?
    If so, why was the land not transferred to your brother while your father was alive?


  • #98
    EmilyBClare
    Registered Users Posts: 41 ✭EmilyBClare


    SusanC10 wrote: »
    Are your brother's house and business premises both on the land in question which is still in your father's name ?
    If so, why was the land not transferred to your brother while your father was alive?

    Yes, & I have no idea why it wasn't?

    If he just came to us and asked for it, it would be no issue. Remember, this only came to light when the land was sold to pay the fair deal, which was the agreement from Day Zero.


  • #99
    Peregrinus
    Registered Users, Registered Users 2 Posts: 26,678 ✭✭✭✭Peregrinus


    notsoyoungwan wrote: »
    It’s not quite as straightforward as your last paragraph. I’m a psychiatrist and I do a lot of these capacity assessments. Someone may have capacity to set up an enduring power of attorney but lack the capacity to make a will at the same time. The capacity assessment for testamentary capacity is more onerous than that for EPOA, which actually has quite a low bar.
    Fair point. Perhaps what I should have said is that the capacity assessement for the EPOA will be useful evidence if it comes to making a case that the individual also had the capacity to make a will. If nothing else, it means there will be a qualified medical professional who did examine the individual at the time and who will have notes of the examation, and who may be able now to express an opinion as to testamentary capcacity.


  • #100
    BattleCorp
    Registered Users, Registered Users 2 Posts: 11,789 ✭✭✭✭BattleCorp


    How would one go about arguing lack of capacity when the willmaker gave the person exactly what they asked for which was to be left out of the will?

    Unless they change their story and say they never asked to be left out of the will.


  • #101
    SusanC10
    Registered Users Posts: 2,432 ✭✭✭SusanC10


    EmilyBClare wrote: »
    Yes, & I have no idea why it wasn't?

    If he just came to us and asked for it, it would be no issue. Remember, this only came to light when the land was sold to pay the fair deal, which was the agreement from Day Zero.

    Is there any chance that your brother thought that this land which has both his house and business had already been transferred to him ? And that is the context in which he said that he did not wish to inherit from your father ? And that your brother only found out after your father died that this was not the case ?


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