Colm Burke (Fine Gael) | Oireachtas source

It just goes to show the complications that can arise and what we as solicitors can encounter.

In another case a person died who had property in England and a farm in Ireland. Farms are always a very emotional issue. We could not find a will but we eventually found a carbon copy of the will in a handbag in a wardrobe in the person's house in England. If there was no will different parties would benefit in a particular way and other parties would benefit in a certain way if there was a will. We applied to the High Court for the carbon copy to be admitted into probate. As people know, a carbon copy does not have evidence of signature. The High Court did allow the carbon copy to be admitted into probate. There was no challenge from anyone who was unhappy with the contents of the will, even though people could have challenged it. The only thing we could get from the solicitor, who was in his 80s when he got to sign the affidavit, was that he did remember drafting the document but he would not swear that he witnessed it ever being signed, but it was admitted to probate. That goes to show that families do agree at times even when it is difficult to work out what the person wanted, but in this case they were satisfied that this was the intention of the person who had died and there was no contest of the carbon copy will. It is one of those cases which worked out very well. It is a problem that is arising more and more in that challenges are more frequent. I agree with the Senators proposing the Bill that people make the challenges because they are advised that they do not have to worry about costs. Some system must be put in place to make sure that where there is a challenge it can only be brought in a very genuine case. There are cases where the challenges are not genuine but people know it is worth it and that they might end up securing something out of the will. Another one I dealt with was the successful issuing of what we call a Calderbank letter, putting certain things on the table and saying if they are not beaten in court, the other party will definitely get caught for costs. It forced a settlement on the matter. This goes to show the process is complicated and not every case is the same. Each estate is different and it is important to work out the intention of the person making the will and what way he or she wanted the estate to be distributed. It is about ensuring the estate is distributed in accordance with such people's wishes.

I thank the Senators for bringing forward the Bill. It is certainly something we must look at as there is a problem. In the past five years I have found there have been more challenges to wills than there were in the previous 20 years in which I practised. It is a problem.