Thursday, 23 October 1969
Dáil Eireann Debate
Mr. Ryan: asked the Minister for Justice if he is aware of the practice of the Registrar of the Probate Officer in requiring from an applicant for a grant of probate an affidavit of the mental capacity of a testator at the time of making a will where the testator died in a home for the care of the senile aged, irrespective of the time of the making of the will, even where the will was made a quarter of a century before death or admission to a home for elderly persons; and if, having regard to the fact that this practice is contrary to modern thinking on psychiatric and geriatric problems, he will take action in and make a statement on this matter.
The rules of the superior courts require that the probate officer or a district probate registrar shall not allow grants of representation to issue until all the inquiries which he may see fit to institute have been answered to his satisfaction. These rules, which validate a practice of long standing, seem to me to be quite reasonable and I do not propose to have them amended.
 In the case of persons who die in institutions such as those referred to by the Deputy, the practice of the High Court requires that acceptable proof of testamentary capacity at the time of making the will should be furnished to the probate authorities. This practice is in my view reasonable.
Mr. Ryan: Does the Minister seriously contend that it is necessary for the purpose of granting a probate on foot of a will which was made a quarter of a century before a person enters a home for old people to require on affidavit the evidence of a doctor that at the time of making the will the person was of sound mind, memory and understanding when, as in most cases, the only reason for the presence of that person in the home for elderly people is advanced age? There appears to be an assumption that because he dies senile at over 80 years of age he was incapable of making a will when he was 40 or 50 years of age. It is contrary to all psychiatric, medical and geriatric thinking.
Mr. Moran: The Deputy appreciates just as I do the wide scope of what we call testamentary capacity. As the Deputy well knows, each case depends on its own particular circumstances, and, depending on circumstances, one could conceive particular evidence being required in connection with the execution of a will made a long time ago. I accept what the Deputy says about a person who had made a will 25 years ago and the fact of his being in a home for elderly persons should not mean that the will should be looked upon with suspicion. I would agree with the Deputy. If he has a particular case and will let me have particulars I will inquire into it. I do not think that is the practice, broadly speaking.
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