No one wants to think about what will happen to their property after their death. Although perfectly understandable, it means that over half the Irish population die without making a Will. When this happens, the law prescribes how your estate is divided and your wishes are of no consequence.
Mulroy and Company Solicitors in Galway highly recommend that you make a Will providing for the division of your assets after your death for the following reasons:
- You can provide for those you wish to benefit.
- You can provide for the guardianship and welfare of your minor children and/or dependants.
- By taking adequate tax advice, you can minimise the Capital Acquisitions Tax payable by those who take inheritances from you.
- You may eliminate emotional difficulties for your beneficiaries and give them certainty regarding their future.
- It will cost less to administer your estate.
Updating your existing Will
You may already have a Will but circumstances change and it will often be the case that the will you previously made no longer expresses your wishes. This might be because of the loss of a spouse or someone else close to you. You may have sold your property or changed your living arrangements. If that is the case, you should consult your solicitor to update your earlier Will or make a new one.
Types of Legacies
There are three main types of legacies which you may provide for in your Will.
A pecuniary legacy is a specified sum of money determined when the Will or codicil is written.
A specific legacy is when a particular item of value is bequeathed. This can include stocks and shares, proceeds of a life insurance policy, property, furniture or jewellery.
A residuary legacy is the gift of the residuary of your estate, or a share of the residue. This is the portion of your estate left after the bequests to your family and friends have been made and after all debts, taxes and expenses have been paid.
What is a Trustee?
In some situations, a person making a Will (testator) may wish to leave assets to a person under the age of 18 years. In this case, the property may be given to a third party to hold it in trust for the minor child until such time as s/he reaches the age of 18 or some later age which the testator may specify.
This third party is called a Trustee and s/he will manage the trust property until such time as the assets are passed on to the beneficiary.
What is a Guardian?
If you have children under the age of 18 years, it is important that you appoint a Guardian to care for them in the event of you passing away. The Guardian is the person who cares for the child on a day to day basis and makes decisions in relation to all aspects of their upbringing, schooling etc. The Guardian takes over the role of the parent in the event of the parent passing away.
Note – In many cases the Guardians and the Trustees may be the same.
Information your solicitor will need
Making a Will is a relatively simple procedure and your Will can be drafted for you by your solicitor. When you visit your solicitor, you should bring the following information with you;
Details of the value of your estate including details of what property you own, where the property deeds are held and details of your accounts with financial institutions and life insurance policies.
The full names and addresses of the people whom you wish to leave benefits to.
Full name and address of any charities which you may wish to leave benefits to.
The name of at least one person (preferably two) who will look after your estate on your death. This is your Executor.
How much will it cost?
The cost of making a Will may be much less than you think. The cost will depend on the complexity of your Will. Mulroy and Company Solicitors will be happy to assist you in making your Will. Please CONTACT US to make an appointment at our offices at 4, University Road, Galway City or at a mutually convenient alternative location.
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.
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 (if you are or have been married you can be under 18)
- 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/civil partners 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 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.
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 marry or enter into a civil partnership, your will shall be revoked, unless your will was made in contemplation of that marriage or civil partnership.
- 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.
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 who dies is a child or other descendant of yours, such as a grandchild, but whose child (or other descendant) is still alive. In that case, the gift becomes part of your deceased beneficiary’s estate for distribution according to their will or intestacy.
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.
If you have property in other countries, it is generally considered advisable to make a will in each of those countries due to possible differences in succession law. Under EU Regulation 650/2012 on matters of succession (Brussels IV), if you have property in another EU member state, apart from the UK or Denmark, you can direct in your will that the law of your nationality should apply to the property.
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 of the grant and the will can be obtained by anyone from the Probate Office or relevant District Probate Registry using Form PAS1 (doc), which you can download from the court forms section on courts.ie. 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 gross value and the net value of the estate.
Detailed information about the estate is not normally available to the general public, however, certain people may be able to inspect the Inland Revenue Affidavit which contains the 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 as well as 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.
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/civil partner 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.
We are here to help. Please do not hesitate to telephone us at 091 – 586760 or email us to discuss making your Will.