Capacity issues and death certificates

27 November 2020


I note that the President of the High Court has issued a second practice direction regarding the format of affidavits on mental capacity, but this time in relation to enduring powers of attorney. It follows that similarly issued in relation to Wards of Court. I set out the link below. In respect of enduring powers this relates to the form of supporting affidavit that one would obtain when registering the enduring power. The Part E section of the EPA itself is remaining the same and there is no change there.

Secondly just a note on dealing with capacity issues on death certificates. Recently the Probate Office raised objections to a grant that I was dealing with due to the fact that there was cognitive decline mentioned on the death certificate. I had no contemporaneous medical certificate at the time when I made the will, due to the fact that I was satisfied of mental capacity at the time. I was surprised that cognitive decline was mentioned on the death certificate. The Probate Office required an affidavit from the treating doctor from the time the will was made. My difficulty was that my clients treating doctor had left practice and was not in a position to give an affidavit. As a result I supplied my own affidavit as attesting witness setting out the circumstances and confirming capacity. Mongey’s precedent (No 24) was helpful. I am glad to report that a grant issued from the Principal Probate Office. So just to note that it is possible to overcome these queries. I think what was beneficial was that I had a detailed attendance note on file. In my consultation with my client I had asked questions to test mental capacity (my clients life story, recent events, friends relations etc). I was able to exhibit this with my affidavit which I think was helpful.

So it is possible to progress these hurdles, but it does show that really we have to have an attendance note with every will and how essential that is. Obviously a medical certificate is a must where there is any hint of a doubt.

Hope that helps.

Here are the links to the recent practice directions