This piece will look at why you need to make a will, what are the requirements for a valid will, what a will should contain, some common mistakes made in drafting wills, what legal recourse has an unhappy child if (s)he feels that (s)he has not been provided for, and more.
Why Make a Will?
There are a number of important reasons why you should make a will in Ireland.
Making a will allows you to provide for the passing of your property with a clear legal document.
- If you make a will you ensure that the minimum of Capital Acquisitions tax is paid by beneficiaries
- You can provide for the special needs of a loved one by making a will
- Administration of the estate is quicker and less expensive than if you do not make a will
- You choose who handles your affairs on death rather than having the state do it for you.
So in summary you keep control of your affairs and property on your death when you make a will.
What is a will?
A will is a formal document which sets out how a person (the ‘testator’/ ‘testatrix’) wishes to dispose of his or her property on death.
A person may make as many wills as he wishes, but the only relevant one is the last valid will made before his death.
For a will to be valid in Ireland, the testator must
- Have attained the age of 18 or is or has been married
- Be of sound disposing mind
Requirements for a valid will
1.the will must be in writing,
2.testator must sign in the presence of each of 2 or more witnesses
3.witnesses must attest by their signatures the signature of the testator in the presence of the testator, but not necessarily in the presence of each other
4. The signature must be found at the foot (end) of the will
The idea of a will having to be in writing has been generously interpreted by the courts and basically means some permanent evidence of the testator’s intention.
Contents of the will
A will should contain at least 10 basic elements:
- the testator’s name and address,
- a revocation clause (re previous wills),
- appointment of executors
- a list of legacies (gifts of money or goods)
- a list of devises (gifts of real property),
- a residuary clause, disposing of the remainder of the estate and dealing with all eventualities
- the date,
- the testator’s signature
- an attestation clause
- signature of the two witnesses with their addresses and descriptions.
Legacies and Devises in Wills
A legacy is a gift of personal property under a will. A devise is a gift of real property.
There is a number of different types of legacy:
- A general legacy-this is a gift out of the rest of the estate after the payment of debts, outstanding taxes owed by the testator, and specific legacies;
- A specific legacy-an example would be a motor car, however this can be given away by the testator during his lifetime in which case the gift will be adeemed (disappeared);
- A demonstrative legacy-this is a mixture of a general and specific legacy;
- A conditional legacy-this legacy has a condition attached which will see the bequest forfeited if the condition is not fulfilled;
- An abated legacy-this is where the residue of the estate is insufficient to meet the testator’s debts and liabilities then a general legacy is first to abate pro rata;
- An adeemed legacy-this is where the testator gives away during his lifetime the item referred to in the will
- A charitable legacy-it is vital that the charity is clearly identified. The Cy Pres doctrine gives us a general principle that a charitable bequest will not fail for uncertainty.
Common mistakes in making a will
- A will is revoked by marriage but not by divorce
- Wills made in other jurisdictions-if a revocation clause revokes ALL previous wills then it will revoke foreign wills, which may not have been intended
- Problems arise if a will is destroyed but not by the testator as an act of destruction must be done with the intention of revocation by the testator
Good ideas when making a will
- Appoint more than 1 executor
- Do not appoint an alternative executor as this will fail for uncertainty (eg I appoint Tom or Sean)
- Get a solicitor to draft it.
It may be necessary to insert, depending on whether there are young children,
- appointment of trustees
- appointment of guardians
- establishment of a trust
- additional powers for executors and trustees
- various enabling clauses
A witness or his spouse cannot benefit under a will.
Doctrine of lapse
If a beneficiary predeceases a testator, whatever was left to that beneficiary fails and that gift will be distributed as if the testator died intestate, unless he has an effective residuary clause in the will.
This shows again the need to have a properly drafted will and why it is not a job for a DIY enthusiast.
There are exceptions to the doctrine of lapse:
- bequests to children and “issue” (section 98 children)
- where the bequest is in discharge of a legal or moral duty
- where there is a bequest to someone on trust for another
- where a will provides for what will happen in the event of a beneficiary predeceasing.
Section 91 of the Succession Act, 1965 states:
For this reason it is absolutely essential that your will contains a residuary clause.
Enabling clauses in a will
It can be very important to insert appropriate enabling clauses in the will because if they are not present the Succession Act makes various provisions such as section 63 which deals with advancement and provides that any payments to a child during the life of the testator will be deducted in calculating the share of that child on the death of the testator.
If the testator leaves a business then if trustees are appointed they will need to have the power to borrow, lend and run a business.
Without these extra powers the trustees can not do so.
If a child predeceases the testator then the benefit that such child would have received goes to that child’s estate, not necessarily to the deceased child’s children.
This is contained in S98 of the Succession Act, 1965 and is very important if you want to ensure that whatever you leave to your child goes to your grandchildren then you have to insert an enabling clause (a gift over clause) to ensure the benefit goes to your grandchildren and not your errant son/daughter in law.
Section 55 of the Succession Act, 1965 provides for a personal representative having the power to appropriate any part of an estate in or towards satisfaction of any share in the estate. However this can attract stamp duty if the specific power to appropriate without notices is not contained in the will.
Apportionment: it is a good idea to exclude the common law and statutory rules re apportionment as the failure to do so may lead to time consuming exercises in calculating income post death and apportioning it.
Powers of Trustees
If you have to insert a trust in the will it is a good idea to give extra powers to the trustees because their statutory powers are limited enough.
An example of such a clause would be:
In addition to all statutory powers which my trustees may have they shall have all the powers specified in the schedule hereto
These extra powers might include:
- the power of investment
- the power to lend
- the power to borrow/mortgage
- the power of maintenance
- the power to trade/run a business
- the power to insure property
- the power of trustees to purchase assets from the estate
What actions can a child take against an estate?
Section 117 of the Succession Act, 1965 allows him to take an action where the testator has failed in his moral duty towards that child.
This is a matter for the court to decide and many cases have been thrashed out in the courts in order to make sense of this moral duty.
Testamentary capacity for making a will
A testator must:
- understand that he is making a will,
- a document that will dispose of his assets on death
- must know the nature and extent of his estate
- Must be able to have regard for those who might expect to benefit from his estate and decide whether he wants to benefit them
Capacity to make a will may be proved by a sworn statement from a doctor or solicitor who attended the deceased at the time the will was made.
In the event of a challenge to the testamentary capacity of the testator, the Courts will decide and have been called upon to do so on many occasions.
An undated will is not necessarily invalid, but a witness will have to swear that the will was executed before the testator died to satisfy the Probate office.
Wills in Special Cases-Imminent Death, the Elderly and Mental Capacity
Wills drafted in cases of imminent death, for the elderly, or for someone about whom there is a doubt as to their mental capacity can be problematic.
In cases where the testator is in a nursing home or hospital and is in danger of imminent death the following considerations need to be considered:
- The testator is capable of giving instructions and (s)he is able to read it, or at least understand it when it is read back to him
- The attestation clause should cover the circumstances and a medical report on the condition of the patient may need to be obtained. (The attestation clause is the final element of a will and appears after the testator’s signature. It will state: ‘Signed and acknowledged by the above named Testator as and for his last Will and Testament in the presence of us both present at the same time who in his presence and at his request and in the presence of each other have hereunto subscribed our names as Witnesses)
- At least two independent witnesses are obtained.
The elderly can be vulnerable because of ill health, advanced age, lack of education, mental incapacity. Special care needs to be taken therefore when they are making their will.
There is a presumption in law of soundness of mind, testamentary capacity, and due execution where a will is formally valid. If the will is later to be challenged on the basis that the testator was of unsound mind it is up to the challenger to prove it.
The test for testamentary capacity was laid down in 1870 in the case of Banks v Goodfellow.
There are 3 elements to testamentary capacity:
- The testator must understand he is making a will which will dispose of his assets when he dies
- The testator must be capable of knowing the extent of his estate
- The testator must be able to give consideration to those people who might expect to benefit and decide whether or not to benefit them.
Elderly people are susceptible to outside or undue influences when it comes to making a will.
There are certain relationships where a question of presumed undue influence arises. These are situations where the relationship is one where a relationship of trust and confidence existed between the parties, eg solicitor/client, doctor/patient.
Other relationships can also arise where, even though no presumption of undue influence arises, one party placed trust and confidence in the other party and there may have been actual undue influence.
Independent legal advice for the testator is the recognised way of rebutting any presumption of undue influence.
Whilst making your own will is very doable it is not advisable for the reasons outlined above and the Succession Act 1965 has various provisions in it which will kick in if you have not made provision for them.
If legal challenges arise to the will the courts may award costs out of the estate, even to the losing challenger so it is crucial that you have properly drafted, legally sound will.
It is a supreme folly for anyone not to make a will and ensure the smooth passing of his/her property to those he loves.
To ensure that your will is sound and valid or to have a will made you can contact Terry through the Contact form on this site and he will be in touch with you within 24 hours to make an appointment.
By Terry Gorry Google+