117. Deputy Bernard J. Durkan asked the Minister for Justice and Equality if adequate provisions exist to protect against legal or professionals who may seek to befriend a person who may be vulnerable for health or other reasons resulting in obtaining the confidence of the vulnerable person to the exclusion of the person's siblings in the production of a will as in the case of a person (details supplied); and if he will make a statement on the matter. [38262/18]
Minister for Justice and Equality (Deputy Charles Flanagan): The Deputy will be aware that it would be inappropriate for me to comment on individual cases.
By way of general information, I can inform the Deputy that Part VII of the Succession Act 1965, sets out the legal requirements for the making of a valid will. These are:
- 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.
Section 89 of the Succession Act, 1965 provides that a will speaks and takes effect from the death of the testator unless a contrary intention appears from the will.
It is, of course, possible for a person to challenge a will on the grounds of the capacity of a person to make a valid will or their ability freely to make decisions in disposing of their property by will.
Under existing case law (in the matter of the estate of Brian Rhatigan. deceased  1 I.R. 630), there are essentially three criteria to be taken into account in determining whether or not a person has 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/she was disposing; and (c) whether the deceased understood and appreciated the claims to which he/she ought to give effect.
Where undue influence is alleged, existing case law (In re Kavanagh: Healy v. McGillicuddy and Another  I.L.R.M.) places the onus of proving undue influence rests on the person alleging it. In order to do that 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;
(c) that the will was the product of influence.
I have no plans to amend existing legislation in this area.