My Late Mother’s Original Will is Missing. Should I be worried ?

Question from a recent caller.

My mother has recently passed away. I know that she made a will as I have been given a copy of same by the Solicitor who made the will. That Solicitor said that my mother took up the original will but I do not know where it is. What can be done?

In the first instance a thorough search should be made among her papers to see if the original will can be located. You should also check with her bank and with any other Solicitor whom she may have used.

If the will still cannot be located,then it would be as well to consult a Solicitor as an application to the Probate Court for a determination may be required.

That Solicitor will make further and extensive enquiries and may put a notice in the Law Society Gazette to see if any other firm of Solicitors has the original will where it may have been subsequently deposited or knowledge as to its whereabouts.

If the original will cannot be traced,then the question will arise as to whether or not the original will was destroyed by your late mother with the intention of revoking same. If it  was held by her and no one can confirm that it was still in existence after her death ,then there is a presumption that she intended to destroy same – animo revocandi – unless evidence to the contrary can be produced, although the presumption may be difficult to overcome. If for example, it could be shown that the will was destroyed by accident or if it could be established that your mother did not have the capacity to revoke it during the period when it was in her custody, it may be possible to prove the will on foot of a copy thereof.

Incidentally the presumption of destruction  animo revocandi  does not apply where a will goes missing in a Solicitors office where evidence can be adduced to explain the situation.

If the presumption of revocation cannot be rebutted and she did not make a previous will, she may be deemed to have died intestate or alternatively a previous will made by her may come into effect. It would be as well to get a determination from the Probate Court as to whether or not the will can be proved on foot of the copy and if not as to what is to happen.

I’d like to acknowledge the contribution of Michael O’Dwyer, Solicitor with Early & Baldwin Law Firm for his contribution to this article.

LegalEagleStar , Thursday , 26th. July , 2012 .

Time waits for no Man or Woman. Thoughts after a funeral.

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Just back from the funeral of a good and decent woman. She has been a loyal client for many years. She was the sister of my GodMother. As I grew up I’d hear of how she was doing but really didn’t know Aileen  all that well.

I was very close to my Godmother Pauline and when I qualified as a solicitor, now over 30 years ago, she insisted I made her will for her.  She subsequently got married after my mother had introduced her to a jolly widower. They were very happy together for many years. This gentleman was a Dublin Corporation Architect and I got on very well with him. I used to recommend him to young couples about to buy their first home. Unfortunately, or fortunately, whatever way you look at it, he used to find ‘terrible’ things wrong with each and every property I asked him to survey. ‘The roof sways’ , ‘It’s build in a mirrow-image of the plans’, just some of the comments he would direct at me. This kept me on my toes as I had to bring this information to the attention of the Vendors solicitors. Many a row I had over ‘essential’ works that he insisted must be done. Sadly he passed away some years ago. It seems like only yesterday that he was here and yet it seems so far away.

Today, I’m consumed with the thoughts of time. What a mysterious thing. Occasions such a death can trigger such thoughts. So much has changed and yet a lot has stayed the same. Where has all the time gone? Time goes so fast. It’s hard to believe that my Grandson Toes is nearly two years old, but it seems like he was just born yesterday.

Sitting in my office thinking about the funeral of my Godmother’s sister today reminds me of times past. She’s gone now but still I can experience her spirit. She was a good woman. I’ll miss her although I didn’t know her all that well. I spoke with her on the odd occasion, usually at a funeral.  She was my connection to my Godmother who died of Parkinson’s Disease some time back. I’d like to know a little more about her life and that of her children. When I was a child Pauline would update us all on how her sister was doing with her own family. But now I feel that bit sadder that she has gone. Part of me, my past will seem like it’s disappeared again, until the next funeral. It is people we deal with, not inanimated objects. They have a history and if we’re lucky enough to have spent some time with them, we can rejoice in their being. Life is so much the poorer without them.

I’ve been told another client died yesterday. His funeral will probably be early next week. He was known to one of my colleagues so it won’t evoke the same memories…or will it?

Aileen Farren RIP

LegalEagleStar , Thursday , 10th. November , 2011 .

WHERE THERE’S A WILL ….THERE’S LIKELY TO BE A DISPUTE !!!

Image by The U.S. National Archives via Flickr

Wills can often be contentious leaving someone unhappy about the outcome.

I have experienced many cases of this arising and a belief that the person making the Will has been got at, or that someone has exerted undue influence on that person. While most people are fairly shrewd when it comes to making a Will, there are others who are vulnerable and can be pressurised.  Solicitors should in general be vigilant in this regard and unfortunately, this is not always the case.

I remember the story of a very nice old lady who assured lots of different people that she had put them in her Will, perhaps in the hope that they would help her in her old age.  She did indeed put them in her Will, at one stage or another, but as they fell out of favour, or failed to look after her, she had them removed from her Will by making a new Will.  Needless to say, when her final Will was produced there were a lot of disappointed Beneficiaries and a feeling that the old lady had been got at to change her Will – which was not in fact the case. I always say that the fact that someone is unhappy with a Will is not  grounds for challenging it,  but some people will try anything in this regard, in particularly if they are to benefit significantly if the Will is set aside.

One case I recall relates to a relation who, if the story is to be believed, was so good to the deceased that it would bring tears to your eyes and who went on to claim that when the deceased made the Will – which strangely left the claimant out – she was so distressed at the passing away of another close relation at the time that she did not know what she was doing. It was only when a previous Will was produced, which had also strangely enough left out the claimant, that the case was dropped !!

Other people are suspicious when a Will is changed just before a person has passed away. However this does not necessarily mean that there was undue influence exercised or that they were pressurised by a third party. In many cases, if a person becomes aware of their impending death, this directs the mind and gives them cause to reflect. Of course, if that person is not capable of understanding what they are doing, then the Will should not be made. In the case of there being any doubt, then confirmation as to soundness of mind should be sought from the Doctor treating that  person.

In relation to elderly people there is a high duty of care on the Solicitor drafting the Will to ensure that the person is of sound disposing mind and is not being unduly influenced or pressurised into doing something they don’t want to do. In a number of cases I have refused to act if I am suspicious of the circumstances. In one case that comes to mind, I remember a daughter who brought her elderly mother along to make a Will but was not happy with the fact that I was insisting of taking instructions from the mother on her own. She informed me that she was  taking her mother to a proper Solicitor – presumably one who would let the daughter run the show !!

Many times I will get a phone call from a third party telling me that another party wants to make a Will and then going on to say what that person wants to put in it ! In those circumstances, I have to patiently explain to them that I cannot take instructions from them and that the request for the making of the Will must come from the person who wants to make it.  I will also insist on taking instructions from that person on their own  – except in the case of a husband and wife coming in together.  I am always suspicious of someone who hands me a sheet of paper drawn up by someone else.

I would hope that all of my colleagues would be diligent and follow the correct procedures in making Wills. In appropriate cases they should be brave enough to refuse to draw up a Will if they are not satisfied, or are suspicious that all is not well.  Sadly this is not always the case.

 

LegalEagleStar  , Wednesday , 6th. July 2011.

This is a will that won’t do

Q   I  AM  writing to you about a Will. The Estate is being handled by a firm of Solicitors in Cork.

She made a will when she was dying and left the house to my brother. He brought the Solicitor to the Hospital to make the Will. She had the money to pay for the funeral and the house was valued at £15,000

I have a copy of the Will and it states that my brother was the only one in the family. So that’s not right. She was dead a few months when £6,000 came out of her job. There was no Will for that money. It should be divided among her brother and sisters. What should I do?

A  YOU do not identify whether the deceased was your mother or your sister as you only refer to her as ‘she’.

In any event from the facts disclosed the Will is Null and Void regardless of what has occurred since. You state that the Will was made in a hospital.

Was she Compus Mentus (of sound mind) at the time? Is it possible that even if she was not, that her condition was so weakened by her impending death that your brother could be held to have exercised undue influence.

They (Cork Solicitors) could only act on the information given by your brother i.e. that he was the only member of the family and that you did not exist. On that count alone the ‘Will’  fails

THE  STAR , Friday January 19, 1990