People who are profoundly deaf may have to prove they are of "sound mind" before they have the right to make a will, according to an Irish legal text book.
This curious legal anomaly was highlighted by a volunteer working at the Citizen's Information Centre in Tralee, Mr Dick Usher, who told The Irish Times an old statute may still exist in Irish law declaring people who are "deaf mute" to be insane unless proved otherwise.
The statute, which apparently dates back to the 17th century, is referred to in a 1991 legal textbook, Principles of Irish Law, by Brian Doolan. Under a section entitled "Capacity to Make a Will", it says a valid will can be made by anyone who is over the age of 18 and is of sound disposing mind. However, it adds: "It was decided in re Mitten (1934) that, for this purpose, a deaf mute is prima facie an insane person."
Mr Usher said that, while deaf people are certainly allowed to make wills, this loophole in the system meant that a hearing person could, in theory, legally challenge the will of a deaf person and gain full rights to that person's estate.
A barrister acquaintance of Mr Usher was asked to find out whether this law had been challenged or updated in any way since the 1934 case, but found nothing. Mr Usher said he was now giving serious consideration to mounting a challenge against the statute in the High Court in a bid to overturn the law.
A number of probate law experts contacted by The Irish Times said that they did not believe such a statute could be enforced or would have any credibility. Indeed, they suggested such a statute may not have any real implications, as deaf people are no longer assumed to be any less intelligent than hearing people.
However, supporters of the deaf community say that the very existence of such a law is disrespectful of the rights of deaf people.
While such a statute may be easily challenged by recently introduced equality legislation, wills do not come under the new legislation, according to the Equality Authority.
Very few such probate law cases involving people with disabilities have been reported. The case from 1934, as reported in the Irish Law Times, centred on a deaf man named Mr Henry Mitten.
Both Mr Mitten's parents had died without making a will and so he applied for a grant of Letters of Administration that would give him the legal authority to administer the estate, i.e. settle outstanding debts and distribute the assets.
Mitten signed affidavits applying for the grant but a question seemed to arise about the legality of these affidavits.
In his judgment on the case, Justice Hanna, said: "It is the settled rule that, prima facie, the will of a person who is a deaf mute is the will of an insane person until satisfactory evidence to the contrary is forthcoming." Justice Hanna said that this same rule should apply to affidavits.
However, he found that there was plenty of evidence that Mitten understood perfectly what was involved in the documents and thus the affidavits were legal, and the application was passed.
