Terry Gorry – Page 4 – Making a Will in Ireland

The late poet and author, Dr. John O’Donohue, made his own will without the benefit of legal advice.

He was a very intelligent man. But he really needed to see a solicitor to have his will drafted.

Because in December, 2011 Justice Gilligan in the High Court declared the will he had drafted void for uncertainty and the entire estate passed to the testator’s mother.

Justice Gilligan, in his judgment, stated that

The Testator has unfortunately provided an illustration of exactly how a person should not make a will. While there can be little doubt but that the Testator was a man of considerable learning, the fact that he did not benefit from legal advice or assistance is evident from the will he drew up. Not only was it deficient in terms of the lack of certainty as to his intention but moreover he unwittingly made the classic error of having two of the intended beneficiaries act as witnesses to his signature, thereby depriving both as a matter of law from benefiting under the terms of the will.

As an introduction to his Judgment Judge Gilligan stated:

The making of a last will and testament is one of the most important tasks most people face and unfortunately it is one often approached in haste and without due consideration for its effect. A primary purpose of a will is to make a definitive statement regarding the disposition of a person’s assets on the event of their death. A properly drawn up will, prepared with the benefit of legal advice provided by a solicitor, should ensure that the testator’s wishes for the disposition of their estate will be fully complied with.

Courts can decide what the intentions of the testator were where there is doubt as to interpreting from the will the intentions of the testator and the Court’s duty is weighted by the presumption against intestacy.

However in this case the Court was unable to decipher the intentions of Dr. O’Donohoe, even though it held that the will was valid insofar as the requirements of section 78 of the Succession Act, 1965 were met.

Once the will was held to be void the entire estate passes to the mother of the deceased in accordance with section 68 of theSuccession Act, 1965.

You can read the entire High Court judgment in O’Donohoe v O’Donohoe here.

Any money that may have been saved in not obtaining the assistance of a solicitor to draft the will in the first place was swamped into insignificance by the legal costs spent going to the High Court to have this dispute resolved.
By Terry Gorry

Here are 50 things you should know about making a will:

The requirements for a valid will are set out in section 77 of the Succession Act, 1965.
To make a will you must be of sound disposing mind and at least 18 (or if younger, married)
If you don’t make a will an intestacy situation arises; this means that your property will be distributed in accordance with the Rules of the Superior Courts and the Succession Act, 1965
Making a will leads to a cheaper and quicker administration of the estate through a Grant of Probate
If you leave a benefit in your will to your child who predeceases you the benefit will go to his estate, not to his children (section 98 of the Succession Act, 1965)
You can prevent this happening by making provision in your will that the benefit will go to, for example, your child’s children
You can engage in tax planning/minimisation of capital acquisitions tax by making a will
Your choice of executor is critical-(s)he handles your affairs and extracts the grant of administration
You can make as many wills as you want
The only will that counts though is the last one before you pass away
Your will must be in writing-it could be carved in stone
You must sign it at the end of the will and your signature must be witnessed by 2 people
Your witnesses cannot benefit from your will so if you intend leaving either one (or both) something get a different witness(es)
Your will must contain your name and address
Your will must be dated
Your will should revoke all previous wills (if any)
A list of legacies refers to your money or goods
A list of devises in your will is a list of your real property
Your will is not revoked by divorce
Your will is revoked by marriage
You cannot appoint alternative executors because your will will fail for uncertainty eg “I appoint Mary or Sean to be my executor”
If you have children under the age of 18 you should appoint trustees and/or guardians
The spouse of any of your witnesses cannot benefit from your will
If an intended beneficiary predeceases you and there is no clause in your will dealing with the residuary of your estate that benefit will be distributed as if you died intestate
Your child can bring a legal action against your estate under section 117 of the Succession Act, 1965 if you fail in your “moral duty” towards him/her
Your spouse has a legal right to a share of your estate thanks to section 111 of the Succession Act, 1965
If you make a will your spouse is entitled to 1/3 of your estate if you leave children and ½ of your estate if you have no children
If you don’t make a will your spouse is entitled to 2/3rds of your estate if there are children and the whole shooting match if there is no children
Children referred to at 26, 27, 28 above includes martial and non marital children and adopted children
Your spouse can cease to be a spouse in 4 ways:By renunciation (section 113, Succession Act, 1965), By separation (Judicial Separation and Family Law Reform Act, 1989 and Family Law act, 1995), By divorce (Family Law(Divorce) Act, 1996), By unworthiness to succeed (Succession act, section 120)
If your will is valid, there is a presumption of testamentary capacity
The test for testamentary capacity was set out in an 1870 case:Banks v Goodfellow
There are 3 aspects to testamentary capacity: a) you must understand you are making a will to dispose of your assets, 2) you must know the extent of your estate, 3) you must be able to give consideration to those who might expect to benefit from your will
Certain situations will give rise to a presumption of undue influence; generally where the relationship of trust and confidence existed eg doctor/patient
Your children are not entitled to any specific share of your estate, unlike spouses (see 26 above)
If you don’t make a will though your children (strictly “issue”) are entitled to 1/3
Your children can bring a legal action against your estate under section 117 of the Succession Act, 1965 for your failure to discharge your moral duty to them
The time limit for bringing such an action is 6 monts; and it is a strict one
You can create a trust in your will
A trust is an equitable obligation binding someone (a trustee) to deal with your property for the benefit of beneficiaries whose identity may not be known yet
Your trustees will be the legal owners of your trust property but they must carry out the terms of the trust which you will decide
If your trust property is “real property” the trust must be evidenced in writing
A trust is not a legal entity so cannot be bound by a legal contract
The Land and Conveyancing Law Reform Act, 2009 has made huge changes in trust law in Ireland
Your estate is administered by your personal representatives-an “executor” in a testate situation and an “administrator” in an intestate situation
Your executor’s job is to extract a grant of probate to “prove” the will and deal with your estate
Your executor does not have to act and may renounce; but once (s)he takes on the role (s)he can’t renounce later
Your executor’s powers come from the will itself and the Succession Act, 1965
Capital acquisitions tax is the tax payable by beneficiaries of your will
The amount to be paid can be reduced/minimized because there is a wide range of reliefs and exemptions, provided you make a will.

You can have your will drafted quickly and easily-simply use the contact form to arrange a consultation.
By Terry Gorry Google+