How to Make a Valid Will in Ireland-10 Key Components

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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

In Writing

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:

  1. the testator’s name and address,
  2. a revocation clause (re previous wills),
  3. appointment of executors
  4. a list of legacies (gifts of money or goods)
  5. a list of devises (gifts of real property),
  6. a residuary clause, disposing of the remainder of the estate and dealing with all eventualities
  7. the date,
  8. the testator’s signature
  9. an attestation clause
  10. 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:

  1.  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;
  2. 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);
  3. A demonstrative legacy-this is a mixture of a general and specific legacy;
  4. A conditional legacy-this legacy has a condition attached which will see the bequest forfeited if the condition is not fulfilled;
  5. 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;
  6. An adeemed legacy-this is where the testator gives away during his lifetime the item referred to in the will
  7. 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

  1. A will is revoked by marriage but not by divorce
  2. 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
  3. 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

make-a-will

Good ideas when making a will

  1. Appoint more than 1 executor
  2. Do not appoint an alternative executor as this will fail for uncertainty (eg I appoint Tom or Sean)
  3. 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:

  1. bequests to children and “issue” (section 98 children)
  2. where the bequest is in discharge of a legal or moral duty
  3. where there is a bequest to someone on trust for another
  4. where a will provides for what will happen in the event of a beneficiary predeceasing.

 Residue

Section 91 of the Succession Act, 1965 states:

Residuary devise or bequest to include estate comprised in lapsed and void gifts.[1837 (c. 26) s. 25] 91.—Unless a contrary intention appears from the will, any estate comprised or intended to be comprised in any devise or bequest contained in the will which fails or is void by reason of the fact that the devisee or legatee did not survive the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, shall be included in any residuary devise or bequest, as the case may be, contained in the will.

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.

Imminent Death

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:

  1. 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
  2. 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)
  3. At least two independent witnesses are obtained.

Elderly Testators

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.

Testamentary Capacity

The test for testamentary capacity was laid down in 1870 in the case of Banks v Goodfellow.

There are 3 elements to testamentary capacity:

  1. The testator must understand he is making a will which will dispose of his assets when he dies
  2. The testator must be capable of knowing the extent of his estate
  3. The testator must be able to give consideration to those people who might expect to benefit and decide whether or not to benefit them.

Undue Influence

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.

Conclusion
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+

Why You Should Avoid Drafting Your Own Will-2 Million Reasons

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

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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 Google+

Making a Will in Ireland-50 Facts You Should Know

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

  1.  The requirements for a valid will are set out in section 77 of the Succession Act, 1965.
  2. To make a will you  must be of sound disposing mind and at least 18 (or if younger, married)
  3. 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
  4. Making a will leads to a cheaper and quicker administration of the estate through a Grant of Probate
  5. 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)
  6. You can prevent this happening by making provision in your will that the benefit will go to, for example, your child’s children
  7. You can engage in tax planning/minimisation of capital acquisitions tax by making a will
  8. Your choice of executor is critical-(s)he handles your affairs and extracts the grant of administration
  9. You can make as many wills as you want
  10. The only will that counts though is the last one before you pass away
  11. Your will must be in writing-it could be carved in stone
  12. You must sign it at the end of the will and your signature must be witnessed by 2 people
  13. Your witnesses cannot benefit from your will so if you intend leaving either one (or both) something get a different witness(es)
  14. Your will must contain your name and address
  15. Your will must be dated
  16. Your will should revoke all previous wills (if any)
  17. A list of legacies refers to your money or goods
  18. A list of devises in your will is a list of your real property
  19. Your will is not revoked by divorce
  20. Your will is revoked by marriage
  21. You cannot appoint alternative executors because your will will fail for uncertainty eg “I appoint Mary or Sean to be my executor”
  22. If you have children under the age of 18 you should appoint trustees and/or guardians
  23. The spouse of any of your witnesses cannot benefit from your will
  24. 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
  25. 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
  26. Your spouse has a legal right to a share of your estate thanks to section 111 of the Succession Act, 1965
  27. 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
  28. 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
  29. Children referred to at 26, 27, 28 above includes martial and non marital children and adopted children
  30. 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)
  31. If your will is valid, there is a presumption of testamentary capacity
  32. The test for testamentary capacity was set out in an 1870 case:Banks v Goodfellow
  33. 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
  34. Certain situations will give rise to a presumption of undue influence; generally where the relationship of trust and confidence existed eg doctor/patient
  35. Your children are not entitled to any specific share of your estate, unlike spouses (see 26 above)
  36. If you don’t make a will though your children (strictly “issue”) are entitled to 1/3
  37. 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
  38. The time limit for bringing such an action is 6 monts; and it is a strict one
  39. You can create a trust in your will
  40. 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
  41. 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
  42. If your trust property is “real property” the trust must be evidenced in writing
  43. A trust is not a legal entity so cannot be bound by a legal contract
  44. The Land and Conveyancing Law Reform Act, 2009 has made huge changes in trust law in Ireland
  45. Your estate is administered by your personal representatives-an “executor” in a testate situation and an “administrator” in an intestate situation
  46. Your executor’s job is to extract a grant of probate to “prove” the will and deal with your estate
  47. Your executor does not have to act and may renounce; but once (s)he takes on the role (s)he can’t renounce later
  48. Your executor’s powers come from the will itself and the Succession Act, 1965
  49. Capital acquisitions tax is the tax payable by beneficiaries of your will
  50. 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+