MAKING A WILL

It is important to make a will simply because if you die without a will, the law on intestacy decides what happens to your property and assets. A will can ensure that proper arrangements are made for your dependents and ensures that your assets are distributed in the way you wish. This will be subject to certain rights of spouses/civil partners and children under the Succession Act 1965. A well drafted will also enables you to minimize the tax burden on any beneficiaries by careful estate planning. 

If a person dies without making a will, then they have died intestate. They lose all control over how their assets are to be divided. The Succession Act 1965 steps in and determines how their estate will be distributed. The law currently states that if one dies intestate leaving a spouse and children then the spouse will be entitled to two-thirds of the estate and the children will share the remaining one-third equally between them. A problem may arise if one has minor children because there may be no testamentary guardians or trustees appointed to protect their interests.

When making a will, the testator will appoint executors who manage their affairs and administer the estate after their death. The testator might also appoint trustees if the will provides for a trust to be set up. 

For a will be to be valid in Ireland it must:

• be made by a person who is over the age of 18 years;
• be made by a person who is of sound mind;
• be in writing;
• be made by them voluntarily;
• be signed by the person in the presence of two witnesses who are not also beneficiaries;
• The will must include an attestation (signing) clause.

A will may be deemed to be invalid if the above requirements are not complied with. In such a case, the rules of intestacy will apply.

Death is not something people like to think about. It is however extremely important to obtain legal advice in the drafting of a will and advice on estate planning in order to ensure that your loved ones are provided for in accordance with your wishes. 

If you have any further questions in relation to the above or would like any assistance in relation to drafting your will please contact us and we would be happy to assist.

Brophy Solicitors

REGISTER OF WILLS IN IRELAND

The continued absence of a National Register of Wills in Ireland has recently been in the news. 

As long ago as 1972 at Basle in Switzerland, the member states of the Council of Europe agreed to establish a Europe-wide registration scheme to facilitate the registration of Wills. The aim was ‘to reduce the risk of the Will remaining unknown or being found belatedly ,and to facilitate the discovery of the existence of [the] will after the death of the testator’ and an age of mobility ‘to facilitate in particular the finding of wills made abroad’. 

However, Ireland failed to sign the Convention on the Establishment of a Scheme of Registration of Wills and also opted out of a proposed single European Certificate of Succession.

The issue was further brought before the Seanad by means of a private members bill, but failed to receive sufficient governmental support in the Dail. This failure to conform to European best practice has been noted by the 2010 European Network of Register of Wills Association.

We are all encouraged to make a will to ensure that our estate passes in accordance with our wishes and to take advantage of estate planning.

It is equally important, in the continued absence of a national Will register, that we take steps to ensure that our Will can be traced on our death. 

The importance of obtaining legal advice when making your will was highlighted in a recent decision of the High Court, O’Donohue v O’Donohue. This concerned the will of the well-known Irish poet and author Dr John O’Donohue. As described by Justice Paul Gilligan, Mr O’Donohue provided an ‘illustration of exactly how a person should not make a will’. Unfortunately his will lacked certainty as to his intention and erred in having two of his intended beneficiaries act as witnesses to his signature. Both ‘classic errors’ led to his intended will being declared void for uncertainty. The will was however effective to revoke an earlier will. The net result was that he died intestate and, contrary to his expressed intention , the whole of his estate passed to his mother. Justice Gilligan noted ‘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”.

It is essential to take legal advice in preparing your will.

Brophy Solicitors offer clear and confidential advice to help you in the making of your will. If you make your will with Brophy Solicitors we will ensure that the will is stored in our secure archive and will not be revealed until after your death. We also recommend that you tell your Executors (those responsible for carrying out your wishes under the will) that you have made a will and that it is stored with Brophy solicitors.

Elaine Hickey
Brophy Solicitors

Read more:
Absence of register of wills puts Ireland out of step with Europe

O'Donohue -v- O'Donohue