Making a will in Ireland,
13 important things you should know.
1. The requirements for a valid will are very specific. There are very clear and are detailed in S77 of the Succession Act 1965. If a will fails any of the requirements a court may deem the will invalid and the estate will not be distributed as per the wishes in the will but by the rules of intestacy used where no will exists.
2. To make a will you must be of ‘sound disposing mind‘. You must have full mental capacity and be at least 18 years of age (if younger than 18 you must be married!)
3. If your will is valid there is a presumption in law that you have
testamentary capacity and the test in law was set a long time ago in 1870 in a case called ;Banks v Goodfellow
4. The test of testamentary capacity and sound mind takes into account 3 things; a) you must understand you are making a will to dispose of your assets. b) You must know the extent of your estate, you must know what your assets are and where they are. c) You must be able to give consideration to those who might expect to benefit from your will. In my opinion (c) is critical and the biggest reason in modern times to make a will with a solicitor.
5. If you leave a gift in your will to your child and that child predeceases you the benefit of that bequest will go into the estate of your deceased child and not automatically to your grandchildren, the children of your pre deceased child .You can provide specifically that what you wish to leave to your child is to go to your child’s children.
6. The courts however recognise there are certain situations will give rise to a presumption of undue influence and determine you were influenced or under duress when you made you will or specific bequests in favour of someone. Generally this is situations where there is a relationship of trust and confidence and you make a bequest in favour of this person. So making a will formally allow a third party to note why you are benefiting a certain person. A legal practitioner will try enquire sufficiently behind your decision to protect that bequest.
7. You cannot disinherit or exclude your spouse in your will even if it’s an estranged spouse if you have not agreed formally not to inherit from the others estate. A spouse in Irish law has an
entitlement to a one third share of your estate if you have children or one half if you have no children .The executor has an obligation to notify your spouse of your death and ask them if they wish to ‘elect’ to take their share of your state . If you leave a bequest less than 1/3rd value of your overall estate to your spouse or one half if you have no children that spouse can elect to take the gift left in the will or the legal right share they are entitled to by law.
8. Your children are not automatically entitled to a share of your estate. You have no obligation (only a moral one) to benefit them. If you choose to benefit one You do not have to benefit them all equally .If you exclude your child or children they can see to challenge that and bring a claim against your estate for a share of your estate to the probate court . This action is commonly called a S117 claim as the Section of the legislation that governs this action is S117 of the Succession Act 1965.The test a court applies is ‘ did you fail in your moral duty ‘ to the child applicant’ . A moral duty is a high standard for the applicant to achieve. I make wills regularly where some children are not included the reasons vary and are in the main fair and equitable. But sometimes it is due to bad relationships, money loaned and not repaid or personal care reasons or maybe neglect. Whatever the reason and there are many I ask the person making the will to share the story and circumstances and that allows me to record the reasons why if a child seeks to contest a will or their exclusion.
9. A child or your children has up to 6 months to take that legal action against your estate under S117 of the Succession Act 1965.
10. You must appoint someone to be the person to administer your will and carry out wishes in your will. That person is called an executor if you make a will or called an administrator if you die without a will. An executor’s role is an unpaid role and often a thankless role as it can involve some facilitation depending how acrimonious relationships may be between beneficiaries! The executors job is to prove the will .The executor you nominate or propose in your will does not have to act and can renounce the role in advance of commencement. But once the executor takes on the role and commences they cannot renounce they must see the job through. It is an important job so choose carefully.
11. You need 2 independent witnesses in your presence at the time of your signing your will. Your witnesses cannot benefit from your will so if you wish to leave a gift to someone DO NOT let them be one of your witnesses .Also the spouse of any of your witnesses cannot inherit either so beware this is a Tiny rule that can have Big consequences !
12. If someone you mention in your will as a potential beneficiary dies before you and you have not specifically provided for that the gift will lapse and go into your residuary clause. Most wills will have a residuary clause unless you choose not to create one. A residuary clause sets out your wishes for those assets you don’t specifically allocate to someone in particular, assets you may not have at the time of making your will or indeed lapsed gifts where someone has predeceased you unexpectedly. Without a residuary clause in your will made in favour of a specific person or named persons your undesignated assets will be divided up per the rules of intestacy as if you had no will and will be distributed amongst your next of kin.
13. Your Will, will , revoke all previous wills made and without a written will your publicly stated oral intentions mean nothing . A claim must be taken by you to reinstate to you what someone says they would do for you, pay you or compensate you for if they said it but didn’t include it in their will. Such actions are contentious and need to be well grounded in fact and proof. Just because someone was preferred over you does not guarantee you a claim Perhaps a will is different now than you know it was previously , perhaps you have concerns particularly if a will of a senior is different than they said or intended .It can happen so the court will always listen to the claims of duress or undue influence . After discussion I can see clearly the facts and identify if you have a concern to challenge.
Contact me on [email protected] with your queries.
Next month I will do a Q&A. Send me your questions on wills and succession in writing or by email.