contesting the validity of a Will because of testamentary capacity

[mitchelstown]

I am new to this valued forum and will value any opinion/s

I am contesting the validity of a Will because of testamentary capacity, undue influence, etc. The Will in question was not signed by testatrix, just a "scrawl", which cant be identified because the lady in question was so ill. At what stage of this Will challenge does my Solicitor request Affidavit of Attesting witness/s. Should this be included in their Affidavit of Scripts when they submit them?

 

[jpd]

Wouldn't a phone call to your solicitor not answer this once and for all, and probably be more accurate than whatever opinion you garner here?

 

[Johnno75]

I agree. Talk to your Solicitor.

An Affidavit of Attesting Witness is a document submitted as part of the Probate application process, if considered necessary.

 

[mitchelstown]

Made contact. She holds the opinion no such Affidavit required. I disagree. Testatrix very ill, No medical opinion sought, No clear signature on the document. No Solicitor involved therefore no instructions given. I cant understand under what circumstances the Affidavit of Attesting witness/s are required?

 

[Brendan Burgess]

If you are setting out on any legal action, but particularly challenging a will, you have a long and difficult road ahead of you.

Your solicitor should be able to explain to you her reasoning. If you don't understand it or accept it, there is a problem.

By all means question your solicitor. But if you don't trust them, then switch solicitor now.

Brendan

 

[Johnno75]

testamentary capacity, undue influence, etc

That’s a lot of legal grounds you’re relying on for your challenge! It sounds to me that you’re also throwing the ‘invalidity owing to improper execution’ ground for good measure.

Lack of testamentary capacity and undue influence are, legally, entirely different things and both require significant amounts of evidence to be successfully proven.

Be very careful how you proceed, for if, for example, you allege undue influence and aren’t successful in proving it in court, the legal costs of the whole action can be levied against you personally.

No doubt your Solicitor will have told you this already.

 

[noproblem]

I remember some years ago an older but very able relative was about to make their will. Was taken to the solicitors office by arrangement and duly met with and had a meeting with same solicitor. The solicitor told this person that it would be important to have a Doctors letter on her health before writing up her will.

Relative duly met the Dr and got what was required. I remember being told the letter the Dr gave cost €250.00.

On getting this, the solicitor helped the client to write up their will.

After my relative passed away (2 yrs ago) and the will contents were made known, I asked the solicitor why my relative had to get the letter, even though their health was very good but age was in the 90's. I was told that it was because there were quite a few in the family and it would help if any dispute arose. Thankfully it didn't (not really) and just maybe it didn't happen because of the Dr's letter.

 

[mitchelstown]

I remember some years ago an older but very able relative was about to make their will. Was taken to the solicitors office by arrangement and duly met with and had a meeting with same solicitor. The solicitor told this person that it would be important to have a Doctors letter on her health before writing up her will.

Relative duly met the Dr and got what was required. I remember being told the letter the Dr gave cost €250.00.

On getting this, the solicitor helped the client to write up their will.

After my relative passed away (2 yrs ago) and the will contents were made known, I asked the solicitor why my relative had to get the letter, even though their health was very good but age was in the 90's. I was told that it was because there were quite a few in the family and it would help if any dispute arose. Thankfully it didn't (not really) and just maybe it didn't happen because of the Dr's letter.

Thank you noproblem for your interest and reply. The state of play at the moment, the witnesses testify that they did not see testatrix make any mark on will and will swear to this, also no solicitor involved. Invalid? would you not agree?

 

[Johnno75]

the witnesses testify that they did not see testatrix make any mark on will and will swear to this

This is interesting.

There is usually an “attestation clause” in a will signed by the witnesses, whereby the witnesses sign a statement in the will to the effect that they witnessed the signing/marking of the will by the Testator (both present at the same time and in the presence of the Testator).

If such a clause exists in the Will you’re contesting, then that now puts your witnesses in a quandary, in that they have signed a statement in the Will confirming that they witnessed the signature/mark of the Testator on the one hand, yet are now stating that they in fact didn’t witness the marking of the will, on other hand.

In other words, their credibility is open to question at trial.

 

[DeeKie]

Signing the will as an indication of its adoption is incredibly important. That’s why the witnesses are incredibly important. If you can get both purported witnesses to swear a clear affidavit that they are not witnesses then that’s a strong position. Is there an older will?

 

[noproblem]

Thank you noproblem for your interest and reply. The state of play at the moment, the witnesses testify that they did not see testatrix make any mark on will and will swear to this, also no solicitor involved. Invalid? would you not agree?

Doesn't matter whether I agree or not, i'm not a solicitor and don't know the facts or otherwise of the case. Employ a good solicitor if you deem the costs are going to be worth it. Think twice about it would be my advice, then think again.

 

[Johnno75]

Now, if the people whose names are on the will as witnesses are saying that they never signed the will as witnesses, that’s a serious fraud and I’d be going to the Gardai about it.

 

[mitchelstown]

Now, if the people whose names are on the will as witnesses are saying that they never signed the will as witnesses, that’s a serious fraud and I’d be going to the Gardai about it.

Sorry jaymon. perhaps I did not make myself clear. One of the witnesses has clearly stated that they did not see testatrix sign her Will on a transaction that took place in a Nursing home. They just signed as a witness on the "presumption" that the testatrix had already signed, which was a signature made with mark. No Solicitor involvement.

 

[mitchelstown]

Signing the will as an indication of its adoption is incredibly important. That’s why the witnesses are incredibly important. If you can get both purported witnesses to swear a clear affidavit that they are not witnesses then that’s a strong position. Is there an older will?

Thank you DeeKie for your interest. One of those witnesses when spoken to has indicated that they signed the document on the presumption that the testatrix had signed this before they entered the Nursing home but they did not view any mark made by her. No Solicitor involvement.

 

[Thirsty]

Then the witness lied when they signed the document.

And having lied once, it will be hard to gain credibility that they are telling the truth now.

 

[Johnno75]

Sorry jaymon. perhaps I did not make myself clear. One of the witnesses has clearly stated that they did not see testatrix sign her Will on a transaction that took place in a Nursing home. They just signed as a witness on the "presumption" that the testatrix had already signed, which was a signature made with mark. No Solicitor involvement.

Then that witness has put themselves in a position. They (and the other witness) may well swear up in court and say that they did not witness the signing of the Testatrix’s signature but they will be savaged in cross examination by the Executor’s lawyers in the event of a challenge.

 

[mitchelstown]

Then that witness has put themselves in a position. They (and the other witness) may well swear up in court and say that they did not witness the signing of the Testatrix’s signature but they will be savaged in cross examination by the Executor’s lawyers in the event of a challenge.

I am not a lawyer jaymon but I believe that they may be seriously advised not to take it to that stage.

 

[MOB]

Thank you DeeKie for your interest. One of those witnesses when spoken to has indicated that they signed the document on the presumption that the testatrix had signed this before they entered the Nursing home but they did not view any mark made by her. No Solicitor involvement.

Read the Succession Act. S.78.
Perfectly sufficient for the Testatrix to acknowledge her signature in front of witnesses. Not necessary that they see the physical act of signing.

"I didn't actually see you signing this; Is this your signature?"
Deceased: Yep; I signed it.
Or perhaps just a nod.
= valid witnessing

Or perhaps some other interaction that caused a witness to be able to say that he or she signed "on the presumption"