CURRENT LEGAL ARTICLES

 

Making a will ensures that, when you die, your property and other possessions go to the people that you choose. Best to seek tax and legal advice.

A will can only be considered valid if:

1. It is made in writing.
2. The person making the will (the testator) is over 18 years old.
3. The testator can make a will. (Understand what you are doing and the assets you are giving away)
4. At the end of the document, the testator signs or marks the will and acknowledges it in the presence of two witnesses.
5. The testator’s two witnesses also sign the will in the testator’s presence.
6. Neither of the testator’s witnesses – or their spouses or civil partners – receive anything in the will. Gifts to them will not be practical. 

The intention of the testator is paramount. Stuff like ambiguity on the face of the will makes it difficult to ascertain the testator’s intentions. Most choices are not disputed or challenged. However, if there is a dispute about the wishes expressed in the choice or whether a choice is legally valid, it must be settled in court. www.greensolicitors.ie 

 

A will is a written document that sets out what you would like to happen to your possessions after you die. A choice must be signed and witnessed.

When you die, your possessions are called your ‘estate’. A ‘testator’ is a person who writes a will. If you die without leaving a choice, you die ‘intestate’.

You can also read about:

• What happens to a deceased person’s money and possessions?
• Dealing with a deceased person’s money and possessions

Here you can read information about making a valid will, the things you should consider when writing your choice, and what will happen if you die without leaving a choice.

You do not have to make a will. If you die without making a will, your estate will be distributed according to the law on succession. This means that your estate will be distributed between your surviving family members in the way set out in law. This is explained in ‘What happens if you die without leaving a will’ below.

You should make a will if you want a say over who inherits all or part of your estate. You can also complete and keep an updated list of the things that you own. You can use a form like our, Where my possessions are kept. It will make identifying and tracing your possessions easier after you die. You should keep the list in a safe place.

You can write a will or have a solicitor write it for you. There is no set cost for having a solicitor write your choice; you can get quotations on prices on a solicitor’s website or by calling their offices. You may be able to save money by shopping around.

A solicitor can advise you about your will and ensure your choice is legally valid. If you write your own choice, you should ensure it is good. It can only be valid if:

• The will is in writing
• You are over 18
• You are of sound mind
• You sign or mark the will or confirm that you made the signature or mark in the presence of two witnesses, present at the same time if possible (the witnesses do not have to see the contents of the will).
• Your two witnesses sign the will in your presence
• The signature or mark is at the end of the will

Gifts left to a witness, their spouse, or civil partner are invalid.

If you want to change your will after making it, you can add a codicil (amendment or change) to your wichoicethis addendum must meet the exact requirements above. You can read more about ‘Changing or revoking your will’ below.

You do not have to have your will in any set format. However, the will must have the following:

• Your name and address.
• A statement that says you revoke or disown all earlier wills or codicils.
• The appointment of one or more executors or people who will carry out your wishes in your will after you die, along with their names and addresses.
• Your will should be dated and signed by you and your witnesses. This statement is called an attestation clause.

A residuary clause is a section in your will that sets out how property not explicitly dealt with in the choice should be distributed. You may leave a part of your estate to someone, but that gift (sometimes called a bequest) could later be invalid. When this happens, that part of your estate becomes part of the residue of your estate, along with other things that are not explicitly mentioned in the will.

Your residuary clause could say that anything not identified in your will should be left to someone.

You have to sign your will in the presence of 2 witnesses. They have to sign the will to attest (witness) that you have signed the will.

If you cannot sign your will because you cannot write, you can make a mark that should be witnessed like a signature.

If you are physically disabled and cannot sign or mark your will, you can direct an agent or representative to sign your choice. Your agent must sign the will in your presence and in your direction, and your two witnesses must be present.

To make a valid will, you must have the mental capacity to do so in the eyes of the law. This means you must understand and be able to decide what you are doing. Suppose you have a medical condition that could affect your ability to understand and determine what you should put in your will. In that case, you should ask your doctor or specialist to certify that you can make a will.

For example, if you have a history of mental illness or if you are in the early stages of a condition that can affect your ability to think and understand (for example, dementia), you should ask your doctor or specialist to certify that you are currently mentally capable of making a will.

If you act under undue influence, you work under pressure from another person or persons. Your will can be challenged because you were acting under duress when you made it, and it doesn’t reflect what you actually wanted.

For example, if you want to leave part of your estate to a solicitor, it is best to write your will with a different solicitor. Otherwise, it is alleged that the solicitor put you under pressure to leave them something.

Your spouse or civil partner has a ‘legal right share’ to your estate. This means they are entitled to benefit from your will, even if you do not provide for them in your choice. Your children also may have entitlements. Partners (that you were not married or in a civil partnership) may also be able to claim a share of your estate.

You can read more about the share of legal rights legal legallegal rights shared by spouses and civil partners.

If you have property in other countries, you should make a will in each country due to possible differences in succession law.

Under EU Regulation 650/2012 on matters of succession (Brussels IV), if you have a property in another EU member state, apart from Denmark, you can direct in your will that the law of your nationality should apply to the property.

If you want to change your will, you and your witnesses must sign or initial your choice in the margin of the page beside the changes. You can also change your intention in the form of a memorandum or written note signed by you and your witnesses that clearly refers to the changes.

To change your will, you can also make a separate document, called a codicil, which is like an update added to the end of your choice. Again, this document, signed by you and your witnesses, should clearly and accurately state the changes you want to make to your will. These changes are then legally binding.

If you plan to make many changes to your will, it might be easier to revoke or cancel your current choice by creating a new one. This can only be challenged if your mental capacity when you withdraw your will is called into question.

Your will is revoked automatically in certain situations:

• If you marry or enter into a civil partnership, your will is revoked unless your choice was made with the marriage or civil partnership clearly in mind. If you make another will, the first will you make is withdrawn.
• If you draw up a written document executed by the requirements for a will, your first will shall be revoked.
• If you burn, tear or destroy your will, it will no longer be valid. Or, if you have someone else kill it, your will shall be revoked, provided this was done in your presence, with your consent, and to revoke your choice.

If you die without leaving a will, your estate will be distributed according to the law of succession.

This also happens:

• When the will is not valid because it was not made properly
• When a legal challenge to the validity of the will has been successful

The succession law also applies to assets not covered by a will, such as where there is no residuary clause.

The order in which your estate is distributed in these cases is set out in the Succession Act 1965.

If you are survived by:

• A spouse or civil partner but no children (or grandchildren): your spouse or civil partner gets the entire estate.
• A spouse or civil partner and children: your spouse/civil partner gets two-thirds of your estate, and the remaining one-third is divided equally among your children. If one of your children has died, that share goes to his/her children.
• Children, but no spouse or civil partner: your estate is divided equally among your children (or their children).
• Parents, but no spouse, civil partner or children: your estate is divided equally between your parents or given entirely to one parent if only one is living.
• Brothers and sisters only: your estate is shared equally among them, with the children of a deceased brother or sister taking his/her share.
• Nieces and nephews only: your estate is divided equally among those surviving.
• Other relatives only: your estate is divided equally between the nearest equal relations.
• No relatives: your estate goes to the State.

You can give your property away before you die, but you should consider:

• The Capital Acquisition Tax (CAT) rules Capital Acquisition Tax (CAT) mean that the person you give your possessions to might has to pay tax. CAT may also be charged on an inheritance.
• If a court finds that you gave away property before you died intending to unfairly reduce the legal right share of a spouse, civil partner or the rights of any child, the person who received the inheritance could be made to pay it back to the estate.

When you make your will, you should consider some common problems that result in a gift made in a choice being invalid.

• The possessions you want to leave to someone may be lost or no longer exist at your death.
• There is confusion about the identity of a beneficiary. For example, you leave a gift to your cousin, Jim, and you have a cousin named Jim.
• If the gift is not clearly identified in your will or does not conform to its description in the choice.
• If you leave a gift to a person who is a witness to your will, that gift will be invalid.

If you have a joint bank account with your spouse, civil partner or child, the surviving account holder will be fully entitled to the money in the report when you die.

If you open a joint bank account with a relative or friend so that they can help you manage your money and do not intend that person to own the money in the history after you die, you should make this clear when you are opening the account.

Most wills are not disputed, but if there is a disagreement, it must be settled in court. If possible, the court will give effect to the testator’s wishes as expressed in the will.

The testator’s wishes are taken from a reading of the will as a whole, with words and phrases given their ordinary meaning unless they are technical words. It can be assumed the testator meant them to be taken in their technical sense.

Evidence outside the will, like letters or notes that refer to the will in advance of its making, may be introduced to the court to explain the testator’s intentions more thoroughly and help discover the true meaning of the will.

Because wills can be disputed, you must write your choice in simple, straightforward language. Statements which could have more than one meaning should be avoided.

After probate has been taken out on a person’s will, that will become a public document. Anyone can get a copy of these documents’ choice and the probate grant from the Probate Office or relevant District Probate Registry using Form PAS1 (doc). Probate is the process of getting authorisation to represent you and carry out the wishes set out in your will.

The grant sets out the name and address of the executor or administrator of the estate and the name of the solicitor acting on their behalf (if any). It also sets out the estate’s gross value and net value.

Detailed information about the estate is not usually available to the general public. However, certain people may be able to inspect the Inland Revenue Affidavit or the Statement of Affairs (Probate) SA.2 Form, which contains detailed information. They include:

• A beneficiary who is named in the will
• Someone who is entitled to a share of the estate
• A child who is entitled to bring proceedings against the estate under Section 117 of the Succession Act 1965

Information on obtaining a copy of a will is available on the Courts Service website and in the information notes of Form PAS1.

The Probate Office also sends copies of the will, the Grant of Representation and the Inland Revenue Affidavit to the Revenue Commissioners.

Personal Application Section
First Floor
15/24 Phoenix Street North
Smithfield
Dublin 7
Ireland

Tel: +353 (0)1 888 6174 or +353 (0)1 888 6728Homepage: http://www.courts.ie/Email: ProbatePersonalApplications@courts.ie 

To activate your subscription and start receiving our insightful updates and valuable

content, click the link below: Confirm Subscription https://greensolicitors.ie/m/create-account

If clicking the link doesn’t work, you can copy and paste the entire link into your browser’s

address bar. Remember, your subscription is vital to us, and we DO NOT share your

information with any third parties. You won’t receive our weekly blog if you do not confirm your subscription by clicking the link above. Don’t worry; you can unsubscribe anytime by contacting us at

info@greensolicitors.ie.

I look forward to having you in the Green & Associates community!

Best regards,

Dylan Green

DISCLAIMER

Please be advised that NOTHING discussed in ANY of our newsletters constitutes legal

advice.