Making a will

Information

A will is a witnessed document that sets out in writing the deceased's wishes for his or her possessions, (called his or her 'estate'), after death.

Reasons for making a will

It is important for you to make a will because if you do not, and die without a will, the law on intestacy decides what happens to your property. A will can ensure that proper arrangements are made for your dependants and that your property is distributed in the way you wish after you die, subject to certain rights of spouses and children.

What happens if you die having made a will

If you have made a will, you are called a testator (male) or testatrix (female). A person who dies having made a valid will is said to have died 'testate'. If you die testate, then all your possessions will be distributed in the way you set out in your will. It is the job of the executor or executors you named in your will to make sure this happens. There are legal limits as to how much of your property goes to which person, as set out in law in the Succession Act, 1965. An executor can be a beneficiary under the will. In other words, the executor can also inherit under the will.

After you die, somebody has to deal with your estate, by gathering together all your money and possessions, paying any debts you owe and then distributing what is left to the people who are entitled to it. If you leave a will before you die, one or more of the executors you named in your will usually has to get legal permission from the Probate Office or the District Probate Registry for the area in which you lived at the time of death to do this. Permission comes in the form of a document called a Grant of Representation.

If you did not name any executors in your will or if the executors are unable or unwilling to apply for a Grant of Representation, documents called Letters of Administration (With Will) are issued. When your estate is distributed, the legal rights of your spouse and children, if any, will be fulfilled first after any debts are paid before any other gifts are considered.

What happens if you die without a will or your will is invalid

A person who dies without a will is said to have died 'intestate'. If you die intestate, this means your estate, or everything that you own, is distributed in accordance with the law by an administrator. To do this, the administrator needs permission in the form of a Grant of Representation. When a person dies without a will or when their will is invalid, this Grant is issued as Letters of Administration by the Probate Office or the District Probate Registry for the area in which the person lived at the time of death.

Rules

Distribution of your estate when you die intestate or have not made a valid will

The legal rules governing the distribution of your property apply:

• When you have not made a will
• When the will has been denied probate because it has not been made properly or a challenge to it has been successful
• When the will does not completely deal with all your possessions.

In these cases, after debts and expenses have been deducted, the estate is distributed in the following way.

If you are survived by:

• A spouse but no children (or grandchildren): your spouse gets the entire estate.
• A spouse and children: your spouse 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: your estate is divided equally among your children (or their children).
• Parents, but no spouse or children: your estate is divided equally between your parents or given entirely to one parent if only one survives.
• 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 relationship.
• No relatives: your estate goes to the state.

The requirements of a valid will

It is possible to draw up a will yourself or you can hire a solicitor to help you. For a will to be legally valid, the following rules apply:

• The will must be in writing
• You must be over 18 or have been or be married
• You must be of sound mind
• You must sign or mark the will or acknowledge the signature or mark in the presence of two witnesses.
• Your two witnesses must sign the will in your presence
• Your two witnesses cannot be people who will gain from your will and they must be present with you at the same time for their attestation to be valid. The witnesses' spouses also cannot gain from your will.
• Your witnesses must see you sign the will but they do not have to see what is written in it.
• The signature or mark must be at the end of the will.

These are legal requirements and if they any of them are not met, the will is not valid. If you want to change your will after you make it, you can add a codicil (amendment or change) to your will; this codicil must meet the same requirements set out above.

The format of the will

You do not have to have your will in any set format. However, it is important that the will has the following:

• Your name and address
• A statement that says you revoke or disown all earlier wills or codicils, such as "I hereby revoke all former wills and testamentary instruments made by me and declare this to be my last will and testament".
• A clause or section of your will that appoints one or more executors, or people who will carry out your wishes in your will after you die, and stating these executors' names and addresses.
• A residuary clause, which is a section in your will that sets out how property not effectively dealt with in the will should be distributed. This is important because specific bequests, such as "I leave x.. to Sean Murphy" can fail (be considered invalid), and then revert to the residue to be decided by this residuary clause. Your residuary clause could say that anything not covered in your will would be a gift or legacy to someone, like "The remainder of my estate I leave to my daughter, Mary".
• Your will should be dated and signed by you and your witnesses. Usually, these signatures are underneath a line in the will that states "Signed by the testator in the presence of us and by us in the presence of the testator". This statement is called "an attestation clause". An attestation clause is not a formal requirement of a valid will, but it is advisable to include it in your will as it constitutes evidence that your will has been validly executed.

What if the testator in unable to sign or make a mark?

If you are unable to sign your will due to ill-health or illiteracy, it is acceptable for you to sign your will by means of a mark.

If you are physically disabled to the extent that you are unable to sign or mark your will, it is possible for you to direct an agent or representative to sign your will for you. Your agent must sign the will in your presence and on your direction and your two witnesses must be present. You then adopt this signature as your own.

The sound mind requirement

In order to make a valid will, you must not only set out your wishes in a written and witnessed document, but you must also have, in the eyes of the law, the mental capacity to do so. This means you must make your will with "understanding and reason" and not be suffering from mental conditions such as delusion, insane suspicion or aversion.

It is your mental condition at the time you made your will is that legally relevant. If you suffer from any mental disorder, it is important that evidence is left with your will (for example, from a doctor) that proves you were mentally competent at the time you made the will. Otherwise, your will can be open to challenge.

Your will can also be challenged on the basis that you were acting under pressure or undue influence when you made it so it is important that you get independent legal advice and not use the services of a solicitor of any potential beneficiary of your will.

Changing or revoking your will

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

Codicils

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 will. This document, again signed by you and your witnesses, should set out clearly and accurately the changes you want to make to your will. These changes are then legally binding.

However, if you plan to make a lot of changes to your will, instead of adding a codicil, it might be easier to simply revoke or disown your current will and make a new one, using the same procedures.

It is always possible for you to revoke your will. This can only be challenged if your mental capacity when you revoked your will is called into question.

Your will shall be revoked automatically in certain situations:

• If you remarry, your will shall be revoked, unless your will was made in contemplation of that marriage.
• If you make another will, the first will you made shall be revoked.
• If you draw up a written document that is executed in accordance with the requirements for a will, your first will shall be revoked.
• If you burn, tear or destroy your will, it will no longer be considered valid. Or, if you have someone else destroy it, your will shall be revoked, provided this was done in your presence, with your consent, and with the intention of revoking your will.

Legal rights of spouses and children

In general, you are free to dispose of your belongings or estate as you wish, but your will is subject to certain rights of spouses and other more limited rights of children. These rights are set out below.

Rights of a spouse

If you have left a will, and your spouse has never renounced or given up his/her rights to your estate, and is not "unworthy to succeed" in legal terms, then that spouse is entitled to what is called a "legal right share" of your estate. This legal right share is one-half of your estate if you do not have children and one-third if you do. Your spouse does not have to go to court to get this share, as any executor is obliged to grant this share where applicable. You can also make a bequest in your will that increases your spouse's legal right share, although if you do not specify that this gift is meant to be in addition to his/her legal right share, the executor may consider it part of that share and not an extra element to it. Your spouse can choose to take either the assets specified under the will or his/her legal right share. The executors must inform your spouse in writing of his or her right to choose between these two options and your spouse must exercise this right within 6 months of receipt of notification or within 12 months of the taking out of the Grant of Representation.

Renouncing or losing rights under a will

It is possible for a spouse to renounce his/her rights to the legal right share. This can form part of an agreement prior to marriage, for example, in the case of a second marriage, or the spouse may set aside his or her rights in order to favour any children. However, any such renunciation may be ignored in certain circumstances, for example, if there is evidence of undue influence or evidence that the spouse did not understand what he/she was doing or did not have independent legal advice.

If a couple is separated, a renunciation of each other's right to the legal right share is usually included in a separation agreement. Divorce, however, automatically ends succession rights.

Unmarried partners have no automatic legal right to each other's estates, although partners can make wills that favour each other. These wills, however, cannot cancel out the legal rights of a spouse if someone is separated but not divorced.

Being judged "unworthy to succeed" is relatively rare, and would arise, for example, if the surviving spouse had murdered or committed certain other serious crimes against the deceased. It could also apply if the spouse had deserted the deceased for at least two years before death.

Rights of children under a will

Unlike a spouse, children do not have any absolute right to inherit their parent's estate if the parent has made a will. Children born inside or outside marriage and adopted children all have the same rights and there are no age restrictions.

However, a child may make an application to court if he/she feels that he/she has not been adequately provided for. It is important to seek legal advice before making such an application. An application must be made within 6 months of the taking out of a Grant of Representation. The court then has to decide if the parent has failed in his/her duty to the child in accordance with the needs of that child. Each case is considered individually, but it is important to remember that the legal right share of the spouse cannot be infringed in order to give the child a greater share of the estate.

The family home

The surviving spouse may require that the family home be given to him/her in satisfaction of his/her legal right share, although if the house is worth more than the legal right share, the spouse may have to pay the difference into the deceased's estate. A court may decide that this sum does not have to be paid if it would cause undue hardship to the spouse or dependent children.

Giving away property in order to disinherit

If a court finds that the deceased person gave away property before he/she died with the intention of defeating the interest of or unfairly reducing the legal right share of a spouse or child, a court order may be issued to the person who received the property, making that person a debtor of the estate, and requiring them to pay back an amount to the estate.

Gifts that fail

Remember that any legacy or gift in your will could fail for many reasons.

• If your will states that you are leaving an asset to someone and you no longer have the asset or the asset no longer exists, then the gift fails, or is in ademption.
• If you leave a gift to a person who is a witness to your will.
• If the gift is not clearly identified in your will or it does not conform to its description in the will.
• Your gift lapses, or no longer applies, if the beneficiary dies before you do. If this happens or if the beneficiary refuses to accept the gift, your gift goes back to your residuary clause, or if you do not have one a residuary clause, into intestacy. Your gift will not lapse, however, if the beneficiary is a child of yours who has died and you have other children, as the gift will then go to the surviving children.

How wills are interpreted

Most wills are not disputed, but if there is a disagreement, it must be settled in court. The court will give effect to the testator or will-maker's wishes as expressed in the will. The testator's wishes are derived or taken from a reading of the will as a whole, with words and phrases taken in their ordinary meaning unless they are technical words and it can be assumed the testator meant them to be taken in their technical meaning. Extrinsic evidence, or evidence outside the will, such as letters or notes that refer to the will in advance of its making, may be introduced to the court to explain more fully the testator's intentions and to help ascertain the true meaning of the will. Where two interpretations of a provision in the will arise, the court will lean in favour of the interpretation that upholds that bequest.

Because wills can be disputed, it is important that you write your will in simple, straightforward language.

Status of wills as public documents

After probate has been taken out on a person's will, that will then becomes a public document and a copy can be obtained by anyone from the Probate Office or relevant District Probate Registry. The Probate Office also sends copies of the will, the Grant of Representation and the Inland Revenue Affidavit to the Revenue Commissioners.

Will substitutes - joint bank accounts and insurance policies

Joint bank accounts or joint ownership of property are valid ways of deciding the fate of your assets in your own lifetime, but making a will can eliminate most potential disputes.

Joint bank accounts

Where joint bank accounts are opened with a spouse or child, it is presumed that one party will be fully entitled to the money in the account when the other party dies. Disputes can arise, however, if someone, perhaps an elderly person or a person with a physical disability, opens a joint bank account with a relative or friend so that the relative or friend can manage his or her finances for him or her. This is because the owner's intention may or may not have been to benefit the relative or friend. A decision in such a case would depend on the intention of the people involved, the amount they each lodged into the account and the terms of their contract with the bank. It is advisable for people with joint accounts to make clear in their contract with their bank or in their will what their intentions are for the money in such accounts.

How to apply

A solicitor will be able to help you draft a will or you can write it yourself. Flac have produced a useful booklet entitled Wills and intestecy (pdf) whch can be downloaded here.

If you are an executor seeking probate, you may make a personal application for a grant of probate to the Probate Office or to one of 14 District Probate Registry offices. You should go to the District Probate Registry Office in the area where the deceased lived at the date of death. If the deceased lived at the time of his or her death in Dublin, Meath, Kildare or Wicklow or lived outside Ireland, application for a grant of probate must be made to the Probate Office in Dublin.

Where To Apply