Wills-How To Make A Will

For any small business owner it is vitally important to make a will….and to ensure that it is a valid will.

Why should you make a will?

Making a will allows you to provide for the passing of your property with a clear legal document

If you make a will you ensure that the minimum of Capital Acquisitions tax is paid by beneficiaries

You can provide for the special needs of a loved one by making a will

Administration of the estate is quicker and less expensive than if you do not make a will

You choose who handles your affairs on death rather than having the state do it for you

So in summary you keep control of your affairs and property on your death when you make a will.

What is will?

A will is a formal document which sets out how a person (the ‘testator’/ ‘testatrix’) 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

Have attained the age of 18 or is or has been married

Be of sound disposing mind

Requirements for a valid will
1.the will must be in writing,
2.testator must sign in the presence of each of 2 or more witnesses
3.witnesses must attest by their signatures the signature of the testator in the presence of the testator, but not necessarily in the presence of each other
4. The signature must be found at the foot (end) of the will

In Writing
The idea of a will having to be in writing has been generously interpreted by the courts and basically means some permanent evidence of the testator’s intention

Contents of the will
A will should contain:
the testator’s name and address,
a revocation clause (re previous wills),
appointment of 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 and dealing with all eventualities
the date,the testator’s signature and
signature of the two witnesses with their addresses and descriptions

Common mistakes in making a will
A will is revoked by marriage but not by divorce

Wills made in other jurisdictions-if a revocation clause revokes ALL previous wills then it will revoke foreign wills, which may not have been intended

Problems arise if a will is destroyed but not by the testator as an act of destruction must be done with the intention of revocation by the testator

Good ideas
Appoint more than 1 executor

Do not appoint an alternative executor as this will fail for uncertainty (eg I appoint Tom or Sean)

Get a solicitor to draft it.
It may be necessary to insert —

appointment of trustees

appointment of guardians

establishment of a trust

additional powers for executors and trustees

various enabling clauses

A witness or his spouse cannot benefit under a will.

Doctrine of lapse
If a beneficiary predeceases a testator, whatever was left to that beneficiary fails and that gift will be distributed as if the testator died intestate, unless he has an effective residuary clause in the will.

This shows again the need to have a properly drafted will and why it is not a job for a DIY enthusiast.

Enabling clauses in a will
It can be very important to insert appropriate enabling clauses in the will because if they are not present the Succession Act makes various provisions such as section 63 which deals with advancement and provides that any payments to a child during the life of the testator will be deducted in calculating the share of that child on the death of the testator.

If the testator leaves a business then if trustees are appointed they will need to have the power to borrow, lend and run a business.

Without these extra powers the trustees can not do so.

If a child predeceases the testator then the benefit that such child would have received goes to that child’s estate, not necessarily to the deceased child’s children. This is contained in S98 of the Succession Act and is very important if you want to ensure that whatever you leave to your child goes to your grandchildren then you have to insert an enabling clause (a gift over clause) to ensure the benefit goes to your grandchildren and not your errant son/daughter in law.

What actions can a child take against an estate?

Section 117 of the Succession Act allows him to take an action where the testator has failed in his moral duty towards that child. This is a matter for the court to decide and many cases have been thrashed out in the courts in order to make sense of this moral duty.

Testamentary capacity for making a will
A testator must:

understand that he is making a will,

a document that will dispose of his assets on death

must know the nature and extent of his estate

Must be able to have regard for those who might expect to benefit from his estate and decide whether he wants to benefit them

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 event of a challenge to the testamentary capacity of the testator, the Courts will decide and have been called upon to do so on many occasions.

An undated will is not necessarily invalid, but a witness will have to swear that the will was executed before the testator died to satisfy the Probate office.

Conclusion
Whilst making you own will is very doable it is not advisable for the reasons outlined above and the Succession Act 1965 has various provisions in it which will kick in if you have not made provision for them.

If legal challenges arise to the will the courts may award costs out of the estate, even to the losing challenger so it is crucial that you have properly drafted, legally sound will.

It is a supreme folly for a small business owner not to make a will and ensure the smooth passing of his property to those he loves.

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