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Wills and Probate

Why a €2M Will Was Declared Void and Estate Fell Into Intestacy

making a will

The late poet and author, Dr. John O’Donohue, made his own will without the benefit of legal advice.

In December, 2011 Justice Gilligan in the High Court declared the will void for uncertainty and the entire estate passed to the testator’s mother.

Justice Gilligan, in his judgment, stated that

The Testator has unfortunately provided an illustration of exactly how a person should not make a will. While there can be little doubt but that the Testator was a man of considerable learning, the fact that he did not benefit from legal advice or assistance is evident from the will he drew up. Not only was it deficient in terms of the lack of certainty as to his intention but moreover he unwittingly made the classic error of having two of the intended beneficiaries act as witnesses to his signature, thereby depriving both as a matter of law from benefiting under the terms of the will.

 

As an introduction to his Judgment Judge Gilligan stated:

The making of a last will and testament is one of the most important tasks most people face and unfortunately it is one often approached in haste and without due consideration for its effect. A primary purpose of a will is to make a definitive statement regarding the disposition of a person’s assets on the event of their death. A properly drawn up will, prepared with the benefit of legal advice provided by a solicitor, should ensure that the testator’s wishes for the disposition of their estate will be fully complied with.

 

Courts can decide what the intentions of the testator were where there is doubt as to interpreting from the will the intentions of the testator and the Court’s duty is weighted by the presumption against intestacy.

 

However in this case the Court was unable to decipher the intentions of Dr. O’Donohoe, even though it held that the will was valid insofar as the requirements of section 78 of the Succession Act, 1965 were met.

 

Once the will was held to be void the entire estate passes to the mother of the deceased in accordance with section 68 of the Succession Act, 1965.

You can read the entire High Court judgment in O’Donohoe v O’Donohoe here.

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Wills and Probate

Intestacy in Ireland-Extracting a Grant of Administration Intestate

When a person dies having failed to make a will, he/she is said to have died intestate. This means that his estate will be distributed in accordance with the Succession Act, 1965, part VI.

This sets out the rules for distribution on intestacy, the shares of surviving spouses and issue, the shares of parents, brothers, sisters, and other matters.

The rules concerning who can take out the grant of administration intestate are set out in the Rules of the Superior Courts 1986, Order 79, rule 5:

Rule 5(1) deals with the order of priority as to who can apply in an intestate situation:

5. (1) In determining to whom letters of administration of the estate of a person who died on or after the 1st of January, 1967, wholly intestate and domiciled in Ireland shall be granted, the persons having a beneficial interest in the estate of the deceased shall be entitled to a grant of administration in the following order of priority, namely:

(a) the surviving spouse;

(b) the surviving spouse jointly with a child of the deceased nominated by the said spouse;

(c) the child or children of the deceased (including any person entitled by virtue of the Legitimacy Act, 1931, to succeed to the estate of the deceased);

(d) the issue of any child who has died during the lifetime of the deceased;

(e) the father or mother of the deceased or, in the case of an illegitimate person who died without having been legitimated, the mother;

(f) brothers and sisters of the deceased (whether of the whole or half-blood);

(g) where any brother or sister survived the deceased, the children of a predeceased brother or sister;

(h) nephews and nieces of the deceased (whether of the whole or half-blood);

(i) grandparents;

(j) uncles and aunts (whether of the whole or half-blood);

(k) great grandparents;

(l) other next-of-kin of nearest degree (whether of the whole or half-blood) preferring collateral’s to direct lineal ancestors;

(m) the nominee of the State;

The entitlement to extract the grant of administration intestate is determined at the date of death of the deceased as section 71 of the Succession Act, 1965 provides:

71.—(1) Subject to the rights of representation mentioned in subsection (2) of section 70, the person or persons who, at the date of the death of the intestate, stand nearest in blood relationship to him shall be taken to be his next-of-kin.

It is worth noting therefore that if a person is not a next of kin at the date of death of the deceased, he cannot become one-even if all the deceased’s other relatives are dead. (‘Next of kin’ are blood relations)

Section 70 of Succession Act, 1965 states:

70.—(1) If an intestate dies leaving neither spouse nor issue nor parent nor brother nor sister nor children of any deceased brother or sister, his estate shall, subject to the succeeding provisions of this Part, be distributed in equal shares among his next-of-kin.

Shares of Surviving Spouse and Issue

Section 67 of the Succession Act states:

67.—(1) If an intestate dies leaving a spouse and no issue, the spouse shall take the whole estate.

(2) If an intestate dies leaving a spouse and issue—

(a) the spouse shall take two-thirds of the estate, and

(b) the remainder shall be distributed among the issue in accordance with subsection (4).

(3) If an intestate dies leaving issue and no spouse, his estate shall be distributed among the issue in accordance with subsection (4).

(4) If all the issue are in equal degree of relationship to the deceased the distribution shall be in equal shares among them; if they are not, it shall be per stirpes.

Documents Required to Extract a Grant of Administration Intestate

  • Death certificate
  • Oath for administrator intestate
  • Typed notice of application or copy of oath
  • Affidavit of current market value of land
  • Inland revenue affidavit (CA 24)
  • Administration bond.
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Wills and Probate

Making a Will in Ireland-6 Critical Reasons to Make a Will

change child's name

Making a will in Ireland is a seemingly straightforward task.

But it can go disastrously wrong and open up a can of worms for those left behind if not done properly.

The requirements for a valid will in Ireland are set out in the Succession Act, 1965 and you can read more about the requirements for a valid will elsewhere on our site.

Why make a will in Ireland?

Put simply, making a will ensures that you dictate how your assets will be distributed on your death and who will administer your estate.

Failure to make a will in Ireland will see an intestacy situation arising and who gets what will then be largely determined by the Succession Act 1965 with the Rules of the Superior Courts, 1986 (Order 79,rule 5) determining who is entitled to extract a grant of letters of administration intestate.

However, there are four further reasons why you should make a will-

1) It will allow you to provide for the special needs of family members and

2) It can lead to good taxation planning with the minimum amount of tax going to the Government and

3) It is cheaper and faster to administer an estate with a Grant of Probate rather than a Grant of Letters of Administration Intestate and

4) An insurance bond will need to be taken out for an intestacy situation.

Further considerations in making a will

There are a number of significant considerations about which you should be advised when making a will and which you should consider.

Section 98 of the Succession Act, 1965

Section 98 of the Succession Act, 1965 deals with a situation where a child (who him/herself leaves children) who is to benefit from an estate predeceases a testator.

If this occurs then Section 98 determines that the benefit does not lapse but goes into the estate of the deceased child. This could mean, depending on his/her will that the original benefit will go to the surviving spouse of that child and not to the grandchildren.

This may not have been the intention of the original testator but there is nothing that can be done about it post-death; you can make provision to prevent this happening while drafting your will though.

This is one of many unintended outcomes which may arise if you are not advised professionally when having your will drafted.

For this reason, it is strongly advised that you have your will drafted by a solicitor who can advise you as to the various outcomes and nuances that you might want to guard against.

Don’t put it on the long finger. Use this contact form to make an appointment or enquiry about making your will.