Q. My father says that he is not going to make a will as everything will go anyway to his children equally. Our Mother is dead some years now. Is he right?
A. Assuming that he only intends his children to inherit, then ultimately, in the absence of a will, the estate of any deceased passes to their next of kin and given that your mother is already deceased, then the children of the deceased are the next in line to inherit and do so equally, with the children of any deceased child taking the share that their deceased parent would have taken or, if more than one, then, in equal shares. The method of extracting that grant however, is different and certainly more costly.
The whole idea of making a will is for the Testator to set out their final wishes in a legally binding format. It leaves nothing to chance and generally rules out arguments as to what any family member thought the Testator meant to say or do. A will need not necessarily mean that all the beneficiaries, or those who felt they should be beneficiaries, are going to be happy. However, it is a very clear statement of the Testators wishes and the courts are generally very reluctant to set a will aside. On the other hand, in the absence of a will, it is open to argument that the Testator made certain promises to some family members over others and a court will listen to arguments supporting any such claim. The estate is therefore more vulnerable to claims against it. A child living at home at the time of the parent’s death may argue that they were promised the house. I am not at all saying that this is what might happen in this particular case but, readers would be surprised at how often it does happen.
When a person dies without making a will, the next of kin have to decide who will act as Administrator. Where there is a will, the process leading up to the final distribution of the estate is called, ‘Taking out a Grant of Probate’. Where there is no will the process is called, ‘Taking out a Grant of Administration’. The latter is a more complex process and requires the additional expense of an Administration Bond whereby the person or persons acting as Administrator(s) have to take out insurance undertaking to Administer the Estate according to the strict rules of Intestacy (no will). This is to protect those who should inherit according to the rules of Intestacy, in the event that a dishonest Administrator should perhaps deliberately leave out a beneficiary entitled who might, for example, have emigrated years ago and be unaware of the death of a family member, or a special needs child who cannot protect their entitlement. The Probate Office have to insist on this as they have no way of knowing that the documents furnished to them accurately lists all known family members of the deceased who are entitled to share in the estate. Generally, the absence of a will exposes the Estate to possible claims and certainly adds to the cost and time involved in taking out a Grant. Our advice as always is to encourage people to make a will.
Q. My neighbour was doing a home will recently and asked me to witness the will. She showed me the signing page but not the text of the will itself. Although she told me it was her will I have no way of knowing that. Does that still stand? The other witness may have read it but she had already signed and left by the time I signed my name.
A. There is a very serious flaw in the signing of this will but it has nothing whatsoever to do with the content of the will. No witness needs to read the text of the will to be a valid witness. This is not and has never been a requirement. However, what is an absolute requirement is that both witnesses are present at the same time and witness each other’s signature, in addition to witnessing the signature of the Testator. A will can be invalidated if this error comes to light subsequently and the implications of this are very serious indeed. For example, if a parent making a will has good reason to favour one child over another, the child receiving a lesser benefit could challenge the will and WILL be successful if it turns out that both witnesses were not present at the same time. This would result in the Estate of the Deceased parent proceeding as if there was no will and all children would inherit equally. A solicitor instructed by an aggrieved beneficiary will always check this out as it is surprising how often it happens. You should go and tell your neighbour immediately that there is a problem with her will and explain why. She should redo it as soon as possible.
Q. My husband left me many years ago and I now want to make a Will but do not want to include him in the Will. Do I still have to regard him as my Spouse with regard to any entitlements he may have if I die first?
A. It is always best in cases where Spouses are living apart to make the Separation part of a formal agreement, whether by way of a Separation Agreement, Judicial Separation or Divorce. In the absence of a Contract of Separation between the Spouses, it is always open to the surviving Spouse to make a claim against the deceased Spouses’ Estate. Remember, in the absence of any formal clarification, the surviving Spouse can say that the Separation was never intended to be permanent nor was it intended to disinherit the surviving Spouse. Clarity is always preferable. There are however other ways in which a Spouse will not be considered a Spouse for the purpose of the Succession Act and inheritance rights and they are as follows.
a) Section 113 of the Succession Act provides for renunciation before or after marriage by way of a written Contract. This can easily be signed by the two of you as a Deed of Waiver but both parties will require to be independently advised. This would not be an expensive procedure.
b) The Judicial Separation and Family Reform Act, 1989 and the Family Law Act 1995 can provide for Property Adjustment Orders and the extinguishment of Succession Act rights.
c) The Family Law (Divorce) Act, 1996, and the subsequent marriage of a Testator will have important implications here. For example a Will is revoked by the subsequent marriage of a Testator following on from Divorce.
d) Unworthiness to succeed. Section 120 of the Succession Act, 1965 provides for the unworthiness of the surviving Spouse to succeed. An example of this situation would be in a case where one spouse has murdered their Spouse and is subsequently attempting to inherit from the Estate of a deceased Spouse.
Q. My father bought and completed a ‘Do it Yourself’ Will form recently, and said that he has been very fair in leaving everything equally to his five children. My brother has recently told me that he was one of the Witnesses to the Will and was able to confirm that this was indeed the case. I am the only single daughter living at home and have looked after my father since he was Widowed 5 years ago. With the price of property now, if I was to inherit a one-fifth only of the house, I would still be homeless. Obviously, I would not want to challenge the Will, as I would not want to fall out with the rest of the family. However, I feel that something should be done about it now. Would it be reasonable to bring it up with my father, and suggest that he ‘reconsider’ his Will?
A. There are a number of very important factors here. Firstly, and most importantly, you mention that your brother, who it would appear is an intended Beneficiary of your father’s Will, actually witnessed the Will? If this is indeed the case, and your brother is a witness to the Will, then he will effectively be disbarred from inheriting, no matter what your father has said in the Will. Anybody who benefits from the Estate of any deceased CANNOT witness the Will. This tends to be one of the difficulties with these ‘Do it yourself Wills’, and it is a problem which simply never arises if the Will is professionally prepared in a Solicitor’s office, as the Solicitor and his/or her staff will inevitably always witness the Will. This needs to be pointed out to your father, as, from what you have said, he would appear to have completely inadvertently ‘disinherited’ one of his children. In those circumstances, your father definitely needs to re-do his Will and clearly, this would be considered quite urgent, given that the Will does not appear to reflect his intentions, all be it inadvertently.
With regard to your other question as to whether or not you should raise the matter of your ‘longer-term security’ with your father, this is really a personal matter. Is it the case that your father has lead you to believe that you will be ‘looked after’? If you have made sacrifices, both professionally, financially and socially, so that your elderly father can continue to live in his own home, then it is certainly a subject which could be discussed openly with him. However, it should probably be discussed with the other family members to ensure, in as far as one can, that there will be no animosity between the beneficiaries, if and when the contents of the Will come to pass. Remember, we are all free to do as we wish with our property, particularly where we are leaving behind adult children only. There is no obligation to leave our assets to our adult children. Clearly, most Testators wish their children to benefit after they are gone. The percentage to which a parent might want one or other child to inherit, depends on each particular case. It may be that your father has not considered the questions going through your mind. An amicable conversation might bring this to a head and prompt your father to put in place, something he simply had not thought of. However, if he does intend to change his Will, he should certainly discuss the matter in private with his Solicitor and ensure, firstly, that it is correctly drafted and witnessed, and secondly, that it fairly reflects exactly what his intentions are with regard to his assets after he has gone. Remember, your father is under no legal obligation to tell you or any other member of his family, what he has put into his Will. He has chosen to do so, but he is not obliged to do this. Any Testator is entitled to absolute privacy and many families do not know the contents of their deceased parent’s Will until such time as it is read out after their parent’s death.
Nonetheless, there is action needed in this particular case and I would urge you to talk to your father as soon as possible about the witnessing of his Will and the consequences thereof.
Q. My father is elderly now and I have encouraged him to make a Will. He is reluctant to do so. In fact, he will not discuss the subject with me. I feel I should put pressure on him to make a Will but wonder if there is anything more I could say to him.
A. It may well be the case that your father has already made a Will and simply does not want to discuss it with you or any of his children. Making a Will is a private matter and though always advisable, it is not legally required. There may be many reasons why your father is either reluctant to discuss it with you, or indeed has made a conscious decision not to make a Will. Some people, particularly older people, can be fearful of making Wills and it is their choice not to do so if they so wish. Some people also take the view when they have children that “everything will go to the children anyway”. It is obviously not the best way to leave things but, people are entitled to make personal choices and we cannot interfere with that. However, you have at least brought the subject up with your father and he knows your views. He is probably well aware that the making of a Will is worthwhile and important. That is as much as you can say to him and after that it is his decision whether or not he has decided to listen to your advice and allow you to bring him to a Solicitor or indeed has already taken your advice and prepared a Will privately elsewhere. I think the best thing to do is simply to respect his wishes now that you have made your views clear and allow him to get on with his life.
Q. I do not have much, if anything, to leave to anybody and am wondering what is the point in making a Will?
A. It is important for everyone to make a Will because, if you do not, and died without a Will, the Law on Intestacy decides what happens to your property, whether that be big or small. A Will can ensure that proper arrangements are made for any family or Dependants and ensure that your property or assets, however big or small, are distributed in the way you wish after you die, subject to certain rights of spouses/ civil partners and children. It is also advisable to complete and keep an updated list of your assets. It is also important to remember that many of us are actually worth more dead than alive. A mortgage protection policy may pay off the balance of any mortgage on our house. A credit union account might be doubled on death. Any insurance cover in place in the workplace could result in a “Death in Service” payment. As such, although we may think that because we do not have substantial savings that in fact we have nothing to leave, the reverse is often the case. It would be unfortunate in those circumstances if the State were to decide who was to inherit, rather than for you to make that decision yourself. Our advice is to make a Will, no matter how small you think your Estate consists of.
Q. I need to make some changes to my Will. Can I simply write them in in pen or add them on to the end of my Will?
A. 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. These witnesses should be the same as the people who originally witnessed your Will. You can also change your Will in the form of a Memorandum or written note that is signed by you and your witnesses and refers clearly to the changes. To change your Will, you can also make a separate document called a CODICIL. This is like an update added to the end of your Will. This document is again signed by you and your witnesses and should clearly and accurately set out 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 at a later date. Your Will shall be revoked automatically in certain situations.
a) If you marry or enter into a Civil Partnership, your Will shall be revoked unless it is made in contemplation of that marriage or Civil Partnership
b) If you make another Will, the first Will you made shall be automatically revoked.
c) If you draw up a written document that is executed in accordance with the requirements for a Will, your first Will shall be revoked.
d) If you burn, tear or destroy your Will, it will no longer be considered valid. This is clearly regarded as an intention to revoke the contents of the Will even if you do not make a new one.
Q. My Fiancé and I are getting married next Summer. We would like to make Wills now but have been told that they will be null and void on our subsequent marriage. As we are planning on going away for 6 months immediately after our marriage, we are wondering if there is any way around this as we would be more comfortable making Wills before we go. We both have property and elderly parents who we want to protect.
A. It is a common enough misconception that all Wills are automatically revoked on the subsequent marriage of one of the Testators. This is indeed the case if the Will was not made in contemplation of marriage. In other words, if one of you had done made a Will years ago naming parties other than your respective Fiancé’s in your Will then, the Will would then most definitely be revoked for marriage. However, you can now attend with a Solicitor and indicate clearly that you wish to make Wills in contemplation of marriage and referring to your forthcoming Marriage and making provisions for each other as if you were married. Such a Will will not be revoked subsequent to the Marriage and will be valid. The simple additional wording to be used in the Will is “I make this Will in contemplation of my forthcoming Marriage to …” We would suggest therefore that you attend with a Solicitor well in advance of your Marriage to give him/her plenty of time to take detailed instructions, prepare a Will and have it signed so that you can put your minds at ease in relation to your forth coming trip. We wish you the best of luck with your Marriage and trip abroad.
Q. My husband and myself want to make Wills soon. We have two of our own children and one child of my deceased sister. I am the Sole Guardian of this child. I am worried as to whether or not I can appoint a Testamentary Guardian of this child in the event of my death?
A. Thankfully, in your situation, the rules have changed thanks to the effect of the Children and Family Relationships Act 2015. New sections were introduced to deal with Testamentary Guardians. The old position was that only a mother or a father (provided he was also a Guardian) could appoint a Testamentary Guardian of their child in the event of their death. However, under Sections 50 and 51 of the 2015 Act, amending Sections of the old 1964 Act, all parents who are also Guardians of any other children not their own, can appoint a Testamentary Guardian of that child. Therefore, you will have no difficulty when you attend with a Solicitor to prepare Wills in deciding who is to be the Testamentary Guardian of your late sister’s child and indeed you may choose the same person who will be the Guardian of your other children in the event of your death during the minority of your children. We hope that this alleviates any concerns which you may have had with regard to the future of your sister’s child.
Q. My husband and I have been thinking about making a Will. However, our house is in negative equity and we only have an overdraft in the bank so my husband said that it seems pointless. We do not have any children at the moment. Is it worth making a will in these circumstances?
A. It is a fairly common misconception for people who perceive themselves as having no assets and think there is no point in making a Will. However, this is not in fact the case. Firstly, the idea of making a Will is, to a large extent, to make it easier for your family to deal with your affairs after your death. It would only add to the complications if you were unfortunate enough not only to leave some debts behind but to have no Will. It is a fact that many of us, particular homeowners, are actually worth more ‘dead than alive’. What this means is that whereas we may be struggling with large mortgages now and may also be in negative equity, as long as we have a mortgage protection policy covering the mortgage and maintain these payments then, the likelihood is that on the death of a joint owner of the property, the mortgage will be paid off in its entirety. Whereas this is not obviously something to look forward to, nonetheless, it does reinforce the absolute importance of making a Will in circumstances where presently any couple may feel that their financial situation is hopeless. This is far from being the case if one spouse or indeed both spouses die during the lifetime of a mortgage protection policy. The same may be the case with any credit union loan. It is worth checking with each individual credit union where you may have your account but, it is often the case that nominal life cover writes off a credit union loan on death and indeed can result in a credit balance being doubled. This is subject to confirmation of each account holders credit union branch and conditions. But, again, it is a further example of how we can currently become so bogged down with financial worries that we also include the worry about what might happen after we are gone, whereas, this is not necessarily the case. Obviously, if couples have subsequently gone on to buy holiday homes or ‘buy to lets’ then there is no compulsory mortgage protection policy on these mortgages so the situation may not be so clear-cut. However, it is extremely important in the circumstances which you describe that you would make a Will to clarify exactly who you would like to benefit from what may well be a very substantial estate after you are gone.
Q. My children are all grown up and I am a widower. I would like to leave some money to charity. How do I go about doing this? Would my children be able to object?
A. The only people you cannot exclude from your Will are your Spouse, Civil Partner or dependent children. Apart from that, we are all free to do as we wish with whatever we have left in our estate. You say that your children are grown up and independent. In those circumstances, there is no legal obligation on you to leave anything to them. However, it is open to any adult child to make a claim on the estate of a deceased parent if he or she feels that either they had been promised something from the estate or, for whatever reason that they have not been adequately provided for. If, as you say, your children are independent and adult, then it would be hard for them to prove that they have not been adequately provided for. Claims can be made on the estates of a deceased in circumstances where an adult child, perhaps still living at home with their surviving parent, believes that they were promised the family home on the death of that parent. Nothing needs to be put in writing to establish this fact and the circumstances alone can establish such a promise. In other words, did the adult child living at home give up a career opportunity to look after an elderly parent? Did they give up the opportunity to buy their own home for the same reason? Assuming that these answers are in the negative then you are free to do as you wish in your Will. Most people like to include their children in their Will, independent or otherwise but it is entirely your decision. You can decide to leave either a Residuary Bequest or a Pecuniary Bequest to the charity or charities of your choice. A residuary gift means that you are leaving an unspecified part of your estate to the particular charity or charities. The usual wording is
‘I give to (insert name of organisation) of (insert address of organisation) all (or a percentage) of the residue (remaining balance) of my Estate whatsoever and wheresoever and I direct that the receipt of the Treasurer or other proper officer for the time being of the said organisation shall be a full and sufficient discharge of same’
A Pecuniary Bequest is the direction of a Specific Sum of Money to go to a particular charity or charities of your choice. If making a gift of a fixed sum, or a specific item, the following text can be used in your Will.
‘I give the sum of € or I bequeath (the item specified) to (insert name of organisation) of (insert address of organisation) and I direct that the Treasurer or other proper officer for the time being of the said organisation shall be proper and sufficient discharge for same’
It would be advisable for you to give this some thought and to attend with your solicitor to amend or execute your Will with the benefit of legal advice and your own decisions. We hope that this has been helpful.
Q. I have a ten-year-old child who is being brought up by his mother. I have since got married and have two children with my wife. I am not actively involved in my ten-year-old son’s life although I do pay maintenance. My wife feels that we should now make wills and that I should favour my two children with her rather than this other child. What is the position legally?
A. The simple answer to this question is that all children are viewed equally in the eyes of the Law and your ten year old son has the same rights as the children of your marriage. All three children are dependant and are therefore equally entitled to your support. For that reason it would be pointless to leave this child out of your Will as his mother would certainly have a legitimate cause of action against your estate if anything where to happen to you. The question arises of course as to whether or not there is much in your estate to leave to your beneficiaries. For most couples, family homes are purchased in the joint names of both husband and wife. In this event, if one spouse predeceases the other, then the house automatically passes to the surviving spouse and does not go through the estate of the deceased. The same is the situation with bank accounts. It is only in a situation where you might be the surviving spouse that a problem might arise in relation to your beneficiaries. For most couples, certainly in the present climate, there really is little to fight about unless you are the surviving spouse and the mortgage has been paid off on foot of a mortgage protection policy. However, the law is absolutely clear and all children are treated equally in the eyes of the law and you need to explain to your Wife that you could be exposing your estate to a costly legal challenge in the event that this child is deliberately excluded from your Will.
Q. I am thinking of making a Will now that I have bought my first house. I can only think of one person who would be a suitable Executor. Most people have told me that I need two, is this correct?
A. You have to be congratulated on your decision to make a Will no matter how young you are. Particularly so, when you own a property which is a valuable asset and probably even more so in the event that a mortgage protection policy were to kick in on death thus paying off the mortgage in full. To answer your question, while only one Executor is legally required, it is better to have two. It is sensible for many reasons. One to watch the other or in case of disability or if one Executor pre-deceases the other so if you have two Executors at least you have a substitute Executor whom you have chosen yourself rather than have one appointed for you. If you are adamant that for the time being you only want one Executor then, assuming that you have a Will drafted by a Solicitor, you should notify the Solicitor if your chosen Executor is no longer able to act or perhaps has moved out of the jurisdiction or is suffering from some disability. In those circumstances, it would certainly be necessary to change the Executor on your Will. However, there is no necessity to have two Executors and, in the short term, rather than delay preparing a Will, you might be well advised to go ahead with your one Executor and simply to make the necessary changes in the event that this Executor is no longer available to act in the administration of your Estate.