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WHERE THERE'S
A WILL...
HOW TO MAKE A
VALID WILL IN IRELAND
(Adapted from The
High Court: A User's Guide, published by Four
Courts Press, ISBN number 9-781851-823079)
A
will is a formal document which sets out how a person (the "testator" -
or "testatrix", if female) wishes to dispose of his or her property on
death. A person may make as many wills as he wishes, but the only relevant
one is the last valid will made before his death.
For a will to be
valid in Ireland, the testator must:
-
be aged 18 or over
(or be - or have been - married),
-
act of his own free
will and
-
be of sound mind,
memory and understanding
and
-
the will must be
in writing (oral wills for sailors or soldiers on military service
are no longer permitted),
-
the document must be
signed
at the end by the testator (or by someone in his presence and by his
direction),
-
the signature must be
written or acknowledged in the presence of two witnesses, both present
at the same time and
-
the witnesses must
sign in the presence of the testator, but not necessarily in each other's
presence.
"Signature" can mean
the initials of the testator or, in the case of an illiterate or severely
disabled person, a mark. In one case, the Court accepted an X as a signature.
In another case, the Court approved a will signed simply "Your loving mother".
But with a feeble signature or a mark, the witnesses will have to provide
a sworn statement, confirming that the will was read over by (or to) the
deceased and that he was of sound mind, memory and understanding.
A will is not necessarily
invalidated simply because the signature does not immediately follow the
last word or is after the witnesses' signatures - but any writing after
the testator's signature is normally excluded. The Courts have ruled a
will invalid where the signature of the testatrix was at the top of the
page.
A will which does
not comply with these provisions will be valid if it complies with the
law:
-
of the place
where the testator made it,
-
of the testator's nationality,
either when he made the will or at his death,
-
of the testator's domicile
or
habitual residence when he made the will or died,
-
of the place where immovable
property is situated or,
-
when a will is made
on a ship or plane, of the place where it had its most real connexion.
A testator must:
understand
that he is making a will,
-
know the nature and
extent
of his property and
-
be able to recall
the people who might be expected to benefit from his estate.
Capacity to make a will
may be proved by a sworn statement from a doctor or solicitor who attended
the deceased at the time the will was made. In the last resort, the Courts
will decide whether a testator had testamentary capacity.
A blind person can
make a will, but a sworn statement will be required from one of the witnesses,
confirming that, if the testator had not been blind, he could have seen
the witnesses sign. But a blind person cannot be a witness as he cannot
see the testator sign.
A witness or his
spouse cannot benefit under a will. A clause agreeing a fee for drawing
up or executing the will is also void if the solicitor or a member of his
firm (or their spouses) act as a witness. An executor who acts as a witness
will lose any benefit.
A person who signs
a will merely to show that he agrees with its contents, may benefit (although
the will should indicate that this is the case). And a witness or spouse
may benefit where:
-
the legacy is given
as a legal or moral duty of the testator (such as a debt),
-
the benefit is given
in
trust for someone else,
-
the benefit arises from
a secret trust,
-
the beneficiary and
the witness married after the will or
-
the legacy is confirmed
in a subsequent codicil witnessed by someone else.
Contents of the will
A will should contain:
-
the testator's name
and address,
-
a revocation clause,
-
a clause appointing
at least one (but preferably two or more) executors,
-
a list of legacies
(gifts
of money or goods),
-
a list of devises
(gifts of real property),
-
a residuary clause,
disposing of the remainder of the estate ,
-
the date,
-
the testator's signature
and
-
the attestation clause
or testimonium
The revocation clause
must revoke codicils and other testamentary dispositions, as well as former
wills. The executors, who should be likely to outlive the testator, should
be clearly identified. "I appoint AB and CD as my executors" or
"I appoint AB as my executor, or, if he cannot or will not act, CD"
would do, but "I appoint AB or CD as my executor" would be void
for uncertainty.
Without a residuary
clause, any property not specifically referred to would pass according
to the rules of intestacy and, if any of the other specific gifts should
fail, the property involved would become part of the residue.
An undated will is
not necessarily invalid, but a witness will have to swear that the will
was executed before the testator died.
The testimonium
shows
that the 1965 Succession Act has been complied with. Its absence will not
invalidate the will, but the Probate Office will require an affidavit from
a subscribing witness. The clause might read: "Signed by the testator
as and for his last will and testament in the presence of us, both present
at the same time, and signed by us in his presence." The witnesses
normally sign under this clause, but the will is not invalidated if they
sign elsewhere.
Wills "speak from
death", and are interpreted as if they had been executed immediately before
the death of the testator, unless the will itself specifies otherwise.
If any children of the testator die before him, any bequest will automatically
pass to their children. If two or more people die and it is not possible
to establish who died first, they are presumed to have died simultaneously.
If the will is in
a foreign language, a translation may be admitted to proof. Any obliteration,
insertion or alteration in a will after its execution is invalid unless
the testator and witnesses sign near the alteration or unless the changes
are proved to have been in the will before its execution. If the will refers
to any documents, they should be produced. If a will is written in pencil,
a copy in red ink must be produced for the Probate Office. An official
copy of any will or grant of administration may be obtained from the Probate
Office in Dublin or from a district probate registry.
Marriage and wills
If a testator is married,
he or she must make proper provision for the other spouse and children.
If there are no children, a surviving spouse has a right to half the estate,
including the family home. If there are children, he or she has a right
to one third of the estate. If a testator has disposed of property within
three years of death in an attempt to disinherit a spouse or children,
the court may rule the disposition void.
A spouse's "legal
right" has priority over any other bequests, although it may be renounced
in writing at any time while the testator is still alive. A spouse who
has deserted or committed a serious offence against the testator or his/her
children loses the right to a share in the estate. The legal right may
be extinguished following a judicial separation and will disappear after
a divorce.
A husband and wife's
mutual rights to succeed to each other's estates may also be extinguished
by the Court at any time on or after a decree of judicial separation, under
the Family Law Act 1995. (Succession rights are automatically extinguished
after a divorce, as the couple are no longer man and wife. Where a marriage
is void, the partners are not spouses and these provisions also do not
apply.)
If the testator failed
to make proper provision for any children in the will, a child (of any
age) may bring an application under section 117 of the Succession Act within
six months from the first taking out of representation. The Court will
consider the application in chambers, from the point of view of a "prudent
and just parent", taking into account:
-
the amount left to the
surviving
spouse (or the value of the legal right),
-
the number of children
of the testator,
-
the ages and positions
in life of the children at the testator's death,
-
the testator's means,
-
the applicant's age,
-
the applicant's financial
position and prospects and
-
any other provision
already made by the testator for the applicant.
A child who has been
found guilty of an offence punishable by two years' imprisonment or more
against the deceased (or any spouse or child of the deceased), may not
make a section117 application.
A simple will
A straighforward will
might read:
This is the last
will and testament of Catherine O'Brien of Ailesbury Road in the City of
Dublin. I hereby revoke all previous wills and testamentary dispositions
made by me. I appoint my brother Al and my sister Sal as executors of this
will and direct them to pay my just debts, funeral and testamentary expenses.
To my housekeeper
Vera, I leave £500. I leave £1000 from my First National building
society account to the Stephen's Green Cats' Home. I leave my Rodin statue
to my chauffeur Brendan. I leave my house at Ballinteer to my brother Vinnie.
All the residue
and remainder of my property of any nature and description and whereever
situated, I leave in equal shares between my children, Bobbie and Barbie.
Dated this__day
of_______ 200_
Signed
Catherine O'Brien
Signed by the
testator as and for her last will and testament in the presence of us,
both present at the same time, and signed by us in the presence of the
testator
Philip Barr
Ken Ball
In the case of a
legacy payable out of specific funds (such as the one from the building
society account) if the subject of the legacy (that is the cats' home)
does not exist at the date of death, the legacy will be extinguished or
adeemed. If, on the other hand, the source of the legacy has ceased to
exist, but the residue is enough to cover the legacy, it may be paid out
of the residue.
A legacy may fail
where:
-
the beneficiary dies
first (unless an exception applies),
-
the gift is void for
uncertainty,
-
the subject matter is
adeemed
or
-
the legacy abates,
due to insufficient assets.
"Ademption" happens
where the testator leaves a specific asset (for example a work of art)
but sells it before dying. "Abatement" means the legacy has to be reduced
because there are insufficient assets to cover all the dispositions. The
abatement may be pro rata.
Revocation of a will
A will may only be revoked
by:
-
a subsequent marriage
-
unless the will is made with that marriage in mind,
-
a properly-executed
later
will or codicil which expressly revokes all earlier testamentary dispositions,
-
a declaration in
writing of intention to revoke the will or
-
burning, tearing or
destruction by the testator, with the simultaneous intention of revocation.
An earlier will is only
revived by re-execution or a duly-executed codicil. A declaration of intent
to revoke a will must be executed in the same way as a will. A letter to
a banker or solicitor who holds the will, asking him to destroy it, would
revoke the will, whether or not it was actually destroyed. If no other
will is executed, this would produce an intestacy. A will may be destroyed
by someone in the testator's presence and by his direction.
Lost wills
If the original will
has been lost, advertisements should be placed in suitable newspapers to
try and find it. A copy will is not normally acceptable, in case the original
will was revoked - perhaps by destruction. But, if a copy exists, the High
Court may be asked to admit the copy to proof. The solicitor or person
who made the copy will must swear that it is authentic. If no photocopy
or carbon copy of the original exists, someone with means of knowledge
(such as a person who has the original on computer disk) may give evidence
so the will can be reconstructed.
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