The Importance of Making a Will

A Will is a document which sets out your directions for the distribution of your assets after you die. It is important for anybody who has assets to make a Will regardless of their age so that their assets pass on to the persons of their choice. It is also important from the point of view that it helps to prevent family disputes and acrimony after your death. A properly made will by a person of sound mind is difficult to dispute.

If a person dies intestate their estate is divided according to the laws of intestacy as set out in the Succession Act, 1965. This could very well mean that your true wishes are not carried out and those who may be most deserving may not benefit at all.

For a will to be valid it must:

1. Be in writing.
2. Be made by a person over the age of 18.
3. State the name and address of the person making the will.
4. Expressly revoke all former wills.
5. Appoint at least one and preferably two executors.
6. Be made by a person of sound mind.
7. Be signed by the person making the will and the signature must be witnessed by two persons present at the same time, neither of whom can benefit under the will.
8. Be signed by the witnesses.
9. Be dated.

In order to make a will it is very important that you obtain proper advice as any mistakes or omissions can lead to the will being rendered wholly or partly invalid. You should be very clear on the following:

1. Who are to be your chosen executors.
2. What you are leaving.
3. Who you are leaving it to.

If you have minor children or have chosen beneficiaries under the age of 18 years you should appoint trustees who will hold the bequest in trust for such beneficiaries until they reach the age of 18. If you have minor children it is also important to appoint guardians for your children who will look after them in the event of your death. Such persons should be carefully selected and consulted to ensure that they are willing and able.

It is also very important to get the proper tax advice when making a Will as Capital Acquisitions Tax may arise for the beneficiaries on an inheritance. If the beneficiary is unable to pay the tax this may result in the asset having to be sold to discharge the tax liability.

It is extremely important, having made a will, that you review your will on a regular basis and at least every two years as personal circumstances change. A Will only takes effect from the date of death and is interpreted as if it had been executed immediately before the death of the Testator. It is therefore imperative that your will contains your full and proper intentions at all times.

Your Will may be revoked in any of the following circumstances:

1. If you have made a properly executed later will which expressly revokes all earlier wills.
2. By subsequent marriage.
3. A declaration in writing of your intention to revoke the will.
4. By burning, tearing or destruction of the will.

If a Testator is married he/she must make proper provision for his/her spouse in the Will. A spouse has a legal right to one half of the Testator’s estate. This right has priority over any other bequests in the Will but it may be renounced in writing while the Testator is still alive. A spouse’s legal right may be extinguished by a court following a judicial separation or divorce. Children are not automatically entitled to a bequest under a Will but if they can prove that they have not been properly provided for during the lifetime of the testator they may bring an application to Court under Section 117 of Succession Act, 1965 to contest the Will.

While a Will itself is generally not a complex document it is imperative that it is prepared and executed properly. Sound legal and tax advice should be obtained prior to the preparation and signing of a will to ensure that it will convey a Testators wishes to the letter.

For further advice on wills and succession contact us