The Circuit Court has refused an application by two decision-making representatives to transfer a man’s family home into joint ownership with his wife, finding that the evidence did not clearly establish that the transfer reflected his wishes or was needed at that time.
In a judgment dated 9 October 2024, Judge John O’Connor said the court had declared in July 2024 that the man, identified as AB, lacked capacity to make specified decisions about his personal welfare and property affairs, even with support from a co-decision-maker. His children, identified as CD and EW, were appointed as decision-making representatives on 12 July 2024.
The representatives sought court approval to transfer the family home into the joint names of AB and his wife. Their counsel submitted that the transfer would allow the surviving spouse to become sole owner automatically on the other spouse’s death, without a grant of probate. The application was presented as a gift, with no financial consideration. The representatives also relied on statements about AB’s past wishes and preferences and submitted that his will left the property to his wife.
The judge said the statements about AB’s wishes had not been given under oath and had not been challenged by his legal representative, who said they could not obtain instructions from him. The court had also received a report from an independent professional advocate.
Judge O’Connor said the law permits a decision-making representative to make a gift only where the court’s representation order specifically authorises it. He said the court must give serious consideration to a person’s wishes and preferences where they can be clearly established, but rejected the applicants’ argument that the law required approval simply because the transfer was said to be practicable and consistent with those wishes.
The judge found no demonstrated urgency or hardship. The reason given for the transfer was convenience, and the application did not establish that there were no charges, contracts, debts or other relevant issues affecting the property. He also said the proposed transfer offered no demonstrated benefit to AB and would not put his wife in a better position than existing arrangements, which allowed the representatives to use AB’s finances for bills and costs relating to her care and comfort.
The judgment said a will has no effect until death and that a lifetime transfer could affect creditors or frustrate a person’s future intentions. It also emphasised that a person’s capacity must be assessed for the particular decision and can vary over time. The judge said AB’s lawyer should investigate the application and consider whether the person’s rights were protected, even when direct instructions could not be obtained.
The application was refused. The judge’s initial view was that there should be no order as to costs because AB’s lawyer made no submissions, but he said he would hear oral submissions if either side wished to address costs.