Dáil Éireann Debate, Thursday - 13 December 2018
98. Deputy Bernard J. Durkan asked the Minister for Justice and Equality if legislative changes are proposed in respect of inheritance legislation with particular reference to minimising the opportunities for misrepresentation to the detriment of family members; and if he will make a statement on the matter. [52668/18]
Amharc ar fhreagra99. Deputy Bernard J. Durkan asked the Minister for Justice and Equality if, in the case of inheritance, adequate provision is made to safeguard the interests of all parties with particular reference to ensuring the minimisation of duress and undue influence on the testator, testatrix or disponer when composing their last will and testament; and if he will make a statement on the matter. [52669/18]
Amharc ar fhreagraI propose to take Questions Nos. 98 and 99 together.
The position is that Part VII of the Succession Act 1965, sets out the legal requirements for the making of a valid will. These are as follows:
- it must be in writing;
- the testator must be over 18 years of age (the testator may be under 18 if he or she is or has been married);
- the testator must be of sound mind;
- the testator must sign or mark the will in the presence of two witnesses;
- the two witnesses must sign the will in the testator's presence;
- the witnesses cannot be beneficiaries of the will;
- the witnesses must see the testator sign the will;
- the signature of the testator must be at the end of the will.
It is possible for a person to challenge a will on the grounds of the diminished capacity of a testator to make a valid will, or their ability freely to make decisions in disposing of their property by will.
Under current law, the following criteria are to be taken into account in determining whether or not a testator had the capacity to make a will:
(a) whether the deceased understood the nature of the act of making a will and its effect;
(b) whether the deceased understood the extent of the property of which he or she was disposing; and
(c) whether the deceased understood and appreciated the claims to which he or she ought to give effect.
Where undue influence is alleged, the law places the onus of proving undue influence on the person alleging it. In order to succeed it must be proven:
(a) that the person alleged to exert the influence had the power or opportunity to do so;
(b) that undue influence was in fact exerted; and
(c) that the will was the product of influence.
In my view, the statutory provisions referred to above and relevant case law provide adequate safeguards for the making of valid wills. While I have no current plans to amend legislation in this area, the operation of the law in this area is kept under review in my Department.
