For an elderly person, making a Will can be difficult to understand so it is imperative that whatever they are about to do is very clearly explained. For a solicitor providing this service, a high duty of care is expected.
The instructions for the Will must be taken from the person making the Will. The solicitor will meet them in person to take his instructions directly and to be satisfied that his client fully understands the process and so that there are no mistakes about what they intend to do.
It is critically important that the provisions of the Will emanate from the client/ testator himself and not family members, a friend or a carer. While these people may have the best of intentions, the solicitor must be satisfied that his elderly client understands and agrees to what is actually provided for in the Will. It is therefore best for any such person to stay as far removed from the process as possible to avoid any possible accusation of undue influence.
There is always a risk of an allegation of Undue Influence coming in to play which the solicitor will be on guard for. This can easily arise where the testator, due to age, illness, confusion, or frailty relies too much on third parties to communicate his/her wishes.
The law requires that those making a Will must be of ‘Sound Mind’ before they execute the document.
In cases where the elderly client/ testator is ill and or is in hospital or a nursing home, the opinion of a doctor may be required to ensure that the elderly client understands the entire process and to guard against a later allegation that the will might be invalid.
For elderly persons who wish to make a Will, consultation with a solicitor is really important to ensure the will is validly made and that all its provisions accurately reflect the wishes of the client and him alone.
If you have any queries regarding making a will please contact us by phone at 061 501100, email Kate O’Brien, probate solicitor at [email protected] or get a call back by completing our contact form so we can provide you with further information or advice.