How to make a valid will
A Lawyer's Guide to Drafting a Will
(Adapted from The High Court: A User's Guide, published by Four Courts Press, ISBN number 9-781851-823079)
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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
- 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 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
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.
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.