Wills drafted in cases of imminent death, for the elderly, or for someone about whom there is a doubt as to their mental capacity can be problematic.
In cases where the testator is in a nursing home or hospital and is in danger of imminent death the following considerations need to be considered:
The testator is capable of giving instructions and (s)he is able to read it, or at least understand it when it is read back to him
The attestation clause should cover the circumstances and a medical report on the condition of the patient may need to be obtained. (The attestation clause is the final element of a will and appears after the testator’s signature. It will state: ‘Signed and acknowledged by the above named Testator as and for his last Will and Testament in the presence of us both present at the same time who in his presence and at his request and in the presence of each other have hereunto subscribed our names as Witnesses)
At least two independent witnesses are obtained.
The elderly can be vulnerable because of ill health, advanced age, lack of education, mental incapacity. Special care needs to be taken therefore when they are making their will.
There is a presumption in law of soundness of mind, testamentary capacity, and due execution where a will is formally valid. If the will is later to be challenged on the basis that the testator was of unsound mind it is up to the challenger to prove it.
The test for testamentary capacity was laid down in 1870 in the case of Banks v Goodfellow.
There are 3 elements to testamentary capacity:
The testator must understand he is making a will which will dispose of his assets when he dies
The testator must be capable of knowing the extent of his estate
The testator must be able to give consideration to those people who might expect to benefit and decide whether or not to benefit them.
Elderly people are susceptible to outside or undue influences when it comes to making a will.
There are certain relationships where a question of presumed undue influence arises. These are situations where the relationship is one where a relationship of trust and confidence existed between the parties, eg solicitor/client, doctor/patient.
Other relationships can also arise where, even though no presumption of undue influence arises, one party placed trust and confidence in the other party and there may have been actual undue influence.
Independent legal advice for the testator is the recognised way of rebutting any presumption of undue influence.
There are a number of important reasons why you should make a will in Ireland.
This piece will look at why you need to make a will, what are the requirements for a valid will, what a will should contain, some common mistakes made in drafting wills, what legal recourse has an unhappy child if (s)he feels that (s)he has not been provided for.
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 at least 10 basic elements:
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 testator’s signature
an attestation clause
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 when making a will
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, 1965 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, 1965 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. Read more about children’s’ rights and wills here.
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 anyone not to make a will and ensure the smooth passing of his/her property to those he loves.