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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 11229
Experience:  Barrister 17 years experience
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A codicil had been created in 2011 in addition to a will

Customer Question

A codicil had been created in 2011 in addition to a will made in 1993. In 2009, the person was deemed to suffer from dementia and yet has signed a codicil even though the legal firm and witnesses were informed of the dementia by his wife. Professional medical evidence indicates the individual suffered from dementia and no medical expert was present when the codicil was made. While the individual had the capacity to sign a document, medical evidence indicate that the person did not have the capacity to understand the legal terminology presented to him with regards ***** ***** codicil and any issue relating to a will or codicil. Is the codicil invalid? Was the individual coerced to signing by the legal firm? Is a medical expert required to be present for someone with dementia prior to signing such legal documents? Do the executors/beneficiaries need to be informed to invalidate a codicil? What can be done in such a case?
Submitted: 2 months ago.
Category: Law
Expert:  Buachaill replied 2 months ago.

Hello, and thank you for your question. I am your Expert and I will provide the answer you require.

Expert:  Buachaill replied 2 months ago.

1. Dear *****, the first thing you need to realise is that dementia does not automatically preclude the signing of a codicil, because if it could be shown by medical evidence that the person was lucid and had legal capacity at the time they signed the codicil, then that would be good and sufficient legal capacity. However, here, because the person was suffering from dementia from 2009 and there was no evidence of the person being lucid and having legal capacity when the codicil was signed in 2011, then the codicil will be struck down for lack of legal capacity when it was signed. However, be aware that litigation will be necessary to reach this point, unless the executor of the will agrees to this course of action.

Expert:  Buachaill replied 2 months ago.

2. Essentially, the issue of legal capacity is dealt with by the person contesting the will entering a caveat to the will to contest the administration of the will. Then executor will then appear to the caveat and seek to have it struck out. Then the issue of lack of capacity at the time of the making of the codicil gets litigated and dealt with, unless the executor accepts the claims of lack of capacity at the time of the signing of the codicil. So, if you are challenging this codicil, you should get yourself a solicitor and enter a codicil. I would advise you to get yourself a solicitor from the outset, so you are prepared for litigation.

Expert:  Buachaill replied 2 months ago.

3. Be aware that a claim that a person was coerced by the legal firm into signing the codicil will never pass muster, unless it can be shown that someone in the legal firm was going to benefit. Solicitors and law firms are taken to be disinterested parties.

Expert:  Buachaill replied 2 months ago.

4. There is an error in part 2. I should have said 'you should get yourself a solicitor and enter a caveat'. Not a codicil.

Expert:  Buachaill replied 2 months ago.

5. Be aware that if a person with dementia was to validly make a codicil, the solicitor would have had to have got an independent medical person, preferably a psychiatrist or psychotherapist, in attendance at the time of the signing and witnessing of the codicil, who would attest to their lucidity and legal capacity at the time of the making of the codicil. The medical person would have to attest to the medical tests carried out to determine the issue of legal capacity.

Expert:  Buachaill replied 2 months ago.

6. In your question, you haven't stated whether the person has died yet or not? However, the procedure I have outlined is what happens when the person has died. Otherwise, the issue of legal capacity to make the codicil cannot be dealt with until the person has died. There is no way to strike down a codicil made without legal capacity whilst the person is living.

Expert:  Buachaill replied 2 months ago.

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