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Contesting a will, capacity

124

Comments

  • 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!?


  • 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...


  • Registered Users Posts: 25,907 ✭✭✭✭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.


  • 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.


  • 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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  • 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?


  • 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.


  • Registered Users Posts: 25,907 ✭✭✭✭Peregrinus


    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.


  • Registered Users Posts: 11,758 ✭✭✭✭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.


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


    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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  • Registered Users Posts: 41 EmilyBClare


    SusanC10 wrote: »
    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 ?

    Possibly, but it is a case of his house and business were within a boundary, and then you park a trailer over by the hedge, it sits for about a year and then you say ya know what I must move that hedge out of the way of the trailer so I can get around it..and thus your boundary has moved..there is what happened, but on a larger scale.


  • Registered Users Posts: 41 EmilyBClare


    BattleCorp wrote: »
    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.

    if you knew the character involved, you might understand.


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


    Possibly, but it is a case of his house and business were within a boundary, and then you park a trailer over by the hedge, it sits for about a year and then you say ya know what I must move that hedge out of the way of the trailer so I can get around it..and thus your boundary has moved..there is what happened, but on a larger scale.

    But, was the land within the original boundary transferred or not ?
    If the land within the original boundary was not transferred - that's one issue. The moving of the boundary if the land within the boundary had already been transferred is another issue.


  • Registered Users Posts: 41 EmilyBClare


    SusanC10 wrote: »
    But, was the land within the original boundary transferred or not ?
    If the land within the original boundary was not transferred - that's one issue. The moving of the boundary if the land within the boundary had already been transferred is another issue.

    Original boundary was transferred, in my brothers name etc but boundary moved over time (6 yrs or so) and now its that residual that belongs to the estate.


  • Registered Users Posts: 1,568 ✭✭✭Squatman


    iwould suggest, although no legal experience, that you have a face to face conversation with your brother and find out what exactly it is that would make him happy. Leave your ego at the door and bend over backwards to facilitate him. Crunch numbers if you must, and if his share exceeds the average of the others willed, then push back. If you don't find a middle ground, then you will all lose out.

    there are already 2 legal eagles commenting on this chain and contradicting each other, with no vested interest. add in a vested interest and you will by paying their mortgages.

    just my 2 cents.


  • Closed Accounts Posts: 22,651 ✭✭✭✭beauf


    Original boundary was transferred, in my brothers name etc but boundary moved over time (6 yrs or so) and now its that residual that belongs to the estate.

    Is that residual any part of the fair deal. Or is that seperate block of land.


  • Closed Accounts Posts: 22,651 ✭✭✭✭beauf


    Squatman wrote: »
    iwould suggest, although no legal experience, that you have a face to face conversation with your brother and find out what exactly it is that would make him happy. ....

    That would only work if the person is reasonable. If they are unreasonable it might better to keep those conversions formal and recorded.


  • Registered Users Posts: 614 ✭✭✭notsoyoungwan


    Peregrinus wrote: »
    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.


    Good luck getting any doctor with a shred of cop on to express an opinion on testamentary capacity when they haven’t specifically assessed that and the will is being contested!! Most would be far too astute to be led down that road. Or at least, they should be too astute for that.


  • Registered Users Posts: 1,568 ✭✭✭Squatman


    beauf wrote: »
    That would only work if the person is reasonable. If they are unreasonable it might better to keep those conversions formal and recorded.

    wont make much odds either way.

    either 1
    he is reasonable and discloses his demands, in which case, its back to solicitors

    or 2
    he is unreasonable and its back to solicitors.

    in my opinion, he wants his story heard, and the platform he is using is through solicitors. if anyone feels their not being considered or taken advantage of the will react. in this case, the brother thinks, if im not getting anything, no-one is.
    if approached like - what would you like from this deal, he may change his ways


  • Registered Users Posts: 41 EmilyBClare


    beauf wrote: »
    Is that residual any part of the fair deal. Or is that seperate block of land.

    Well , it could have been sold for more money, but wasn't. Purchaser wasn't prepared to deal with brother. so it was left out.


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  • Registered Users Posts: 41 EmilyBClare


    Squatman wrote: »
    wont make much odds either way.

    either 1
    he is reasonable and discloses his demands, in which case, its back to solicitors

    or 2
    he is unreasonable and its back to solicitors.

    in my opinion, he wants his story heard, and the platform he is using is through solicitors. if anyone feels their not being considered or taken advantage of the will react. in this case, the brother thinks, if im not getting anything, no-one is.
    if approached like - what would you like from this deal, he may change his ways

    I think you hit the nail on the head here, wants his story to be told perhaps, but we all know his story - he is trying to rewrite it now after its gone to print.


  • Closed Accounts Posts: 22,651 ✭✭✭✭beauf


    I don't think he cares about his story. He just wants to be difficult. Why? because that his nature.


  • Registered Users Posts: 8,567 ✭✭✭CoBo55


    Good luck getting any doctor with a shred of cop on to express an opinion on testamentary capacity when they haven’t specifically assessed that and the will is being contested!! Most would be far too astute to be led down that road. Or at least, they should be too astute for that.

    That wasn't how it worked in my case. The doctor just signs the affidavit to say that at the time Mr X made his will there's nothing on my records to indicate he had dementia, I have been his doctor from "date A" to the time of his death.


  • Registered Users Posts: 8,567 ✭✭✭CoBo55


    Squatman wrote: »
    iwould suggest, although no legal experience, that you have a face to face conversation with your brother and find out what exactly it is that would make him happy. Leave your ego at the door and bend over backwards to facilitate him. Crunch numbers if you must, and if his share exceeds the average of the others willed, then push back. If you don't find a middle ground, then you will all lose out.

    there are already 2 legal eagles commenting on this chain and contradicting each other, with no vested interest. add in a vested interest and you will by paying their mortgages.

    just my 2 cents.

    Sorry but there's absolutely no way the op should do that. She didn't do anything wrong here, herself and her other brother and the solicitor are trying to execute a will here and that's what they should remain focused on, nothing else.


  • Registered Users Posts: 614 ✭✭✭notsoyoungwan


    CoBo55 wrote: »
    That wasn't how it worked in my case. The doctor just signs the affidavit to say that at the time Mr X made his will there's nothing on my records to indicate he had dementia, I have been his doctor from "date A" to the time of his death.

    That’s not what I’m talking about though. I’m talking about a scenario where someone has dementia, and had been assessed to have the capacity to set up EPOA, and did that the same day as writing a will. another poster said that a doctor could testify that the fact the person had capacity to do EPOA indicated they’d have had capacity to write a will, and I was pointing out that 1.they’re two separate issues, one more complex than the other and that someone may have capacity to do one but not the second and 2. No doctor worth their salt is going to testify as to someone’s testamentary capacity when they didn’t specifically assess that and the will is being contested.

    In your case, the doctor didn’t comment on capacity, they just said that he didn’t have dementia, based on his records. That’s a factual statement, not a retrospective assessment of his capacity.

    As a general principle, there is a presumption in law that someone has capacity, unless it’s proven otherwise. But I have been asked more than once to give an opinion on capacity when I never assessed it, and the person has since died- I always refuse. If I’ve assessed someone, gotten all the relevant info, made a decision, I’ll have contemporaneous notes with verbatim quotes, and then yeah, I’m happy to defend my opinion and I will stand over it in court. But ask me to give an opinion on something that I didn’t specifically assess? Not a chance!


  • Moderators, Computer Games Moderators, Social & Fun Moderators Posts: 8,572 Mod ✭✭✭✭Wilberto


    Original boundary was transferred, in my brothers name etc but boundary moved over time (6 yrs or so) and now its that residual that belongs to the estate.

    In that case, could you just get a City/Council Engineer/Conveyancer or whatever to physically map out the boundary? Surely the land that was initially transferred would have been recorded in the Land Registry. Seems like it could solve that boundary issue.

    No doubt someone will be along to debunk that suggestion though. :pac: :)

    I hope everything gets resolved though. Leaving a will is supposed to make things so much easier but all to often it just ends up making things more complicated. :(


  • Closed Accounts Posts: 22,651 ✭✭✭✭beauf


    I get the impression that the brother can delay things but is very unlikely to be able change it.

    But the law sometimes it's an ass. That's the worry.


  • Registered Users Posts: 8,567 ✭✭✭CoBo55


    Wilberto wrote: »
    In that case, could you just get a City/Council Engineer/Conveyancer or whatever to physically map out the boundary? Surely the land that was initially transferred would have been recorded in the Land Registry. Seems like it could solve that boundary issue.

    No doubt someone will be along to debunk that suggestion though. :pac: :)

    I hope everything gets resolved though. Leaving a will is supposed to make things so much easier but all to often it just ends up making things more complicated. :(

    Exactly you're spot on there, once the remaining land transfers to the new owner(s) they can re-establish the correct boundaries. Brother won't be happy but that's life, move over boyo there's a new Sheriff in town.


  • Registered Users Posts: 6,133 ✭✭✭Claw Hammer


    CoBo55 wrote: »
    Exactly you're spot on there, once the remaining land transfers to the new owner(s) they can re-establish the correct boundaries. Brother won't be happy but that's life, move over boyo there's a new Sheriff in town.

    Whoever buys the land will have the brother for a neighbour. Not may people willingly go into a situation where there are going to be legal battles. Land registry boundaries are not conclusive and as the purchaser came on the scene when the brother was already in possession of the land and his only witnesses as to the true boundary are the siblings of the squatter it could be a very long, uncertain and expensive legal battle to get the brother out of that portion of the land.


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  • Registered Users Posts: 8,567 ✭✭✭CoBo55


    Whoever buys the land will have the brother for a neighbour. Not may people willingly go into a situation where there are going to be legal battles. Land registry boundaries are not conclusive and as the purchaser came on the scene when the brother was already in possession of the land and his only witnesses as to the true boundary are the siblings of the squatter it could be a very long, uncertain and expensive legal battle to get the brother out of that portion of the land.

    That'll be the new buyers decision to make, no matter what happens regarding land the brothers days of suiting himself are numbered. I think it's time the op and her brother and the solicitor started standing up to this fcuker. Sometimes the universal language needs to be employed... Not very professional I know but sometimes enough is enough...


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