When a person dies, one common question which can arise is whether they had mental capacity at the time they made their will. For a will to be valid, the person making the will must have testamentary capacity (i.e. be of sound disposing mind) at the time of the making of the will.
When an application for a Grant of Probate (or Letters of Administration with Will Annexed) is filed with the Probate Office, it is generally accepted that the Probate Office will assume the will was made by a person of sound disposing mind. However, some indicators may cast doubts on this assumption. For example:
- The death certificate indicates any one of the following causes of death either as a main cause of death or a co-existing condition: Alzheimer’s, dementia, cognitive impairment.
- Testator died in a psychiatric institution.
- Testator died a ward of court.
In these cases, generally, and to avoid any potential for conflict, the Probate Office will look for an affidavit of testamentary capacity.
Ideally the GP of the deceased at the time they made their will will execute the affidavit. If this is not possible (e.g. if the GP has since died) the Probate Office will accept an affidavit of testamentary capacity from a GP who was not the testator’s GP at the time of execution of the will but instead became their GP afterwards. In some cases, where a doctor’s affidavit is not available, the Probate Office will accept an affidavit from the solicitor who took the instructions and prepared the will.
If you would like any help with this or any other legal issues, please get in touch with McGrath Mullan info@mcrgrathmullan.ie or call us here +353 (0) 1 873 5012 .
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