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

administration-of-estates-and-probate-ireland

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+

Spouses’ and Children’s Rights under the Succession Act, 1965

spouses rights

The Succession Act, 1965 protects surviving spouses of deceased persons by affording considerable protection as the Act restricts the right of the testator to leave his/her property to whoever he/she wishes.

Spouses’ Rights under the Succession Act, 1965

Section 111 of the Succession Act, 1965 states:

111.—(1) If the testator leaves a spouse and no children, the spouse shall have a right to one-half of the estate.
(2) If the testator leaves a spouse and children, the spouse shall have a right to one-third of the estate.

 

The estate to which the surviving spouse is entitled to a share in is ‘net estate’ which is ‘all estate…not ceasing on his death’. So this excludes trust property, joint property passing by survivorship, property in which the deceased had a limited interest, and validly nominated property (credit union accounts, post office saving certificates, nominated pension schemes).

Costs, liabilities and expenses also need to be taken into account to leave a net estate figure. It is this figure that the spouse is entitled to either one half of (no children) or one third of (children).

In summary, the legal right share is calculated on the net estate of the testator ie all property less expenses, debts, and liabilities.

Legal Right Share

This entitlement is called the ‘legal right share’ which only applies in a testate situation, that is where there is a will.

In an intestate situation, that is, there is no will, the surviving spouse is entitled to two thirds of the estate if the deceased has children; if the deceased has no children, the surviving spouse is entitled to the entire estate.

‘Children’ included for the purposes of section 111 above include

  • Children of his blood, both marital and non-marital
  • Children validly adopted by him.

It does not include

  • Step children
  • Foster children
  • Children for whom he acted in loco parentis

The right of the surviving spouse to the legal right share ranks after the rights of creditors of the deceased but before all other beneficiaries.

Section 112 of the Succession Act, 1965 states:

112.—The right of a spouse under section 111 (which shall be known as a legal right) shall have priority over devises, bequests and shares on intestacy.

 

Legal Right Share Versus Bequest?

Section 114 (2) of the Succession Act, 1965 states that

(2) In any other case, a devise or bequest in a will to a spouse shall be deemed to have been intended by the testator to be in satisfaction of the share as a legal right of the spouse.

If this situation occurs and the testator dies fully testate, then the surviving spouse will have a choice to make as set out in section 115 of the Act which provides for the surviving spouse to elect to between the legal right share entitlement and the rights under the will.

115.—(1) (a) Where, under the will of a deceased person who dies wholly testate, there is a devise or bequest to a spouse, the spouse may elect to take either that devise or bequest or the share to which he is entitled as a legal right.
(b) In default of election, the spouse shall be entitled to take under the will, and he shall not be entitled to take any share as a legal right.

 

If the surviving spouse does not elect to take either the bequest or the legal right share, he/she will be deemed to have taken the bequest and will lose the legal right share.

Where a testator dies partly testate and partly intestate the calculation is more complex and the following will need to be calculated-the value of the net estate, the value of all bequests under the will, and the value of the intestate part of the estate.

Section 115, Succession Act, 1965

(2) (a) Where a person dies partly testate and partly intestate, a spouse may elect to take either—
(i) his share as a legal right, or
(ii) his share under the intestacy, together with any devise or bequest to him under the will of the deceased.
(b) In default of election, the spouse shall be entitled to take his share under the intestacy, together with any devise or bequest to him under the will, and he shall not be entitled to take any share as a legal right.

 

Appropriation of the Family Home in favour of a Surviving Spouse

Section 56 provides for the right of surviving spouse to require dwelling and household chattels to be appropriated.

This section provides for the surviving spouse to request the personal representative to appropriate the dwelling in which the surviving spouse ordinarily resides if this property is part of the estate of the deceased person. This appropriation will be towards the satisfaction of his/her legal right share. (There are certain restrictions on this right to appropriate which are set out in subsection 5)

Spouse no longer a spouse?

There are 4 ways by which a spouse ceases to be a spouse for Succession Act, 1965 purposes.

a)      Renunciation

Section 113 provides for renunciation before or after marriage by way of a written contract.

b)      Separation

The Judicial Separation and Family Law Reform Act, 1989 and the Family Law Act, 1995 can provide for property adjustment orders and the extinguishment of succession rights.

c)       Divorce

The Family Law (Divorce) Act, 1996 and the subsequent marriage of a testator will have important implications here. For example, a will is revoked by the subsequent marriage of a testator.

d)      Unworthiness to succeed

Section 120 of the Succession Act, 1965 provides for the unworthiness of the surviving spouse to succeed. An example of this situation is the ‘Catherine Nevin/Jack Whites Pub’ case: In Re Nevin, High Court, 1997.

What happens when a surviving spouse takes his/her legal right share?

It blows the will out of the water. And there is no compensation for aggrieved beneficiaries who lose out as a result.

Children’s Rights

Unlike spouses, children are not entitled to any specific share in a deceased person’s estate.

childrens rights

Testate

Accordingly, in a testate situation, a child is only entitled to whatever the will of the deceased says.

Intestate

In an intestate situation a spouse is entitled to two thirds of the estate with the one third going to the ‘issue’. ‘Issue’, for the purposes of the Succession Act, 1965, includes marital and non-marital children, adopted children and their lineal descendants. Step children and foster children are not included.

Types of Children

A testator may have a number of different types of children eg

  • marital children
  • unborn children
  • section 98 children (see below)
  • non-marital children
  • adopted children
  • step children
  • foster children.

Section 98 Children

It is worth noting the provisions of section 98 of the Succession Act, 1965. It provides that where a child predeceases a testator leaving issue at the time of death, the gift from the testator will not lapse but will take effect as if the death of that child occurred after the death of the testator, unless a contrary intention appears from the will.

This means that if a testator’s child predeceases him leaving grandchildren, any benefit that would have been received by the child will pass to his estate.

Actions that a Child Can Take Against an Estate

The first action to look at is a ‘section 117′ action. Section 117 of Succession Act, 1965 provides:

117.—(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
(2) The court shall consider the application from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.
(3) An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy.
(4) Rules of court shall provide for the conduct of proceedings under this section in a summary manner.
(5) The costs in the proceedings shall be at the discretion of the court.
(6) An order under this section shall not be made except on an application made within twelve months from the first taking out of representation of the deceased’s estate.

 

The Court will consider the situation from the perspective of a prudent and fair parent and must consider the position of the other children of the testator also.

The time limit for bringing an action under section 117 is 6 months and this is a strict limit.

The critical test for success of a section 117 challenge is

  • whether the parent positively failed in his moral duty to make proper provision for the child and
  • the child must establish that he/she had a need which the testator could have satisfied in making his will.

A court cannot make an order which will interfere with the legal right share of the surviving spouse.

The second type of action is a ‘section 63′ action. Section 63 of the Succession Act, 1965 deals with advancements to children and allows a child to bring a case against a child who has previously received an advancement during the testator’s lifetime. This action will seek to have the previous advancement to a sibling taken into account in the distribution of the estate on death.

If this action is successful, it will clearly impact on the distribution of the estate.

Proprietary Estoppel

The third type of action that can be taken by a disappointed child is a proprietary estoppel action. A proprietary estoppel action will aim to prove that the child acted to his detriment in the belief that he would be given a right to the deceased’s property and the deceased knew and encouraged this belief.

This is a very difficult action to succeed with.

However, if it is successful and an equitable interest has been established, it will prevail over the legal right share of the spouse and the claims of other children sharing the estate, unlike a successful section 117 action.

Underage Children and Wills

If there is a bequest to a child (an underage child) and there are no trustees appointed in the will, or where an underage child inherits on intestacy, the legal personal representative has a problem: there is nobody to whom the legal personal representative can vest the asset and there is nobody from whom he can obtain a receipt.

This is why it is advisable to insert a trust in a will where the beneficiaries may include under age children.

However if this does not occur, section 57 of the Succession Act, 1965 allows the personal representative to appoint trustees. Also, if the personal representatives do not appoint trustees then they will be trustees for the purposes of this section.

Section 57:

57.—(1) Where an infant is entitled to any share in the estate of a deceased person and there are no trustees of such share able and willing to act, the personal representatives of the deceased may appoint a trust corporation or any two or more persons (who may include the personal representatives or any of them or a trust corporation) to be trustees of such share for the infant and may execute such assurance or take such other action as may be necessary for vesting the share in the trustee so appointed. In default of appointment the personal representatives shall be trustees for the purposes of this section.

Section 58 is of assistance where a child becomes entitled to land on intestacy:

(2) Where an infant becomes entitled to any estate or interest in land on intestacy and consequently there is no instrument under which the estate or interest of the infant arises or is acquired, that estate or interest shall be deemed to be the subject of a settlement for the purposes of the Settled Land Acts, 1882 to 1890, and the persons who are trustees under section 57 shall be deemed to be the trustees of that settlement.

One other piece of legislation should be considered when dealing with children and wills:

  1. The Guardianship of Infants Act, 1964 which allows a parent by deed or will to appoint another person to be a guardian after death. This is a testamentary guardian and only comes into effect after the death of the testator.

Tax Status of a Child

Step children and foster children are not considered “children” for the purposes of the Succession Act, 1965; however they are under capital acquisitions tax legislation.
By Terry Gorry Google+