Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

I move amendment No. 144:

In page 106, line 20, to delete "Subject to subsection (2), nothing" and substitute "Nothing".

This is a technical amendment to remove an incorrect cross-reference. The cross-reference remained in the Bill incorrectly following the agreement on Committee Stage to my amendment proposing to delete the provisions that would have allowed an application to be made to the High Court to alter a will when a person has lost testamentary capacity.

Amendment No. 145 proposed by Deputy O'Dowd seeks to re-insert a provision that was removed on Committee Stage. The principle that a person's will should be respected goes to the heart of our system of succession. A will is made when a person has capacity and reflects the will and preferences of the person in terms of how his or her property and assets are to be disposed of after death. As I indicated when I sought the Committee Stage amendment, the court has traditionally been very reluctant to interfere with a will as the expression of a person's will and preferences.

I appreciate that there may be changes in circumstances between the point at which a will is drawn up and the death of the person. Such changes may make it impossible to carry out the person’s intentions at the time the will was drawn up. At the same time, if the principle is conceded that a will can be changed when a person has lost capacity, we run the risk that a beneficiary may falsely claim to the court that he or she can correctly interpret what the person's wishes were at the time the will was drawn up. We have no way of verifying the person's intentions with the person as that person will have lost capacity. The provision could lead to a circumstance in which a will might be altered against the intentions of the person. I am not satisfied that the provisions allowing for this facility to be used only in exceptional circumstances and where the interests of justice so demand are sufficient safeguards.

The more appropriate way to approach this issue is for solicitors to advise clients at the time of drawing up a will to ensure they are clear as to the way in which their intentions can be expressed most appropriately in a will, as well as the factors that may prevent their intentions from ultimately being implemented. This will enable a person, while still retaining capacity, to have the choice as to how to address the problem. For this reason, I cannot accept the Deputy’s amendment.

Deputy O'Dowd proposes, in amendment No. 146, to provide for a trust to be presumed in favour of the transferor in a voluntary transfer of property. This amendment does not seem to be specifically focused on persons with capacity difficulties and, as such, appears to be beyond the scope of the Bill.In any case, it will require further analysis and legal advice. While I cannot accept the amendment for these reasons, we will consider the matter further.

See this speech in context