Making a Will in Ireland: What You Need to Know
What is a will?
A will is a signed and witnessed document explaining how you want your estate - your money, property and other assets - dealt with after your death. The person making the will is the testator. A person who dies without a valid will dies intestate.
A will is not compulsory, but it allows you to choose who benefits from your estate. Keep an up-to-date list of your assets and where important documents are stored, and keep that list safely.
Making a valid will
You may make your own will, but a solicitor can ensure it is valid and advise on complex inheritance issues. A valid will must:
Be in writing
Be made by a person aged 18 or over who has the necessary mental capacity
Be signed or marked by the testator at the end of the will, in the presence of two witnesses
Be signed by both witnesses in the testator's presence
The witnesses need not read the will. A gift to a witness, or to the witness's spouse or civil partner, is invalid.
A testator must understand that they are making a will, the extent of their estate and the people who may expect to benefit. If illness or a condition such as dementia could raise questions about capacity, a doctor or specialist should confirm capacity when the will is made.
Solicitors' fees for preparing a will are not fixed, so you may request quotations.
What the will should contain
Your full name and address
A clause revoking all earlier wills and codicils
The names and addresses of one or more executors who will administer the estate
Clear details of each gift and beneficiary
A residuary clause dealing with everything not specifically given away
The date and the signatures of you and your witnesses in an attestation clause
A failed or invalid gift normally falls into the residue
Family and relationship rights
Spouse or civil partner
A surviving spouse or civil partner has a legal right share even if the will provides less: one-half of the estate where there are no children, or one-third where there are children. The survivor may choose to accept less and need not claim the full share.
Cohabiting partner
An unmarried cohabiting partner is not automatically a next of kin and has no automatic share on intestacy, apart from assets owned jointly. A financially dependent qualified cohabitant may apply to court for provision from the estate. Generally, the couple must have lived together for at least five years, or two years if they have a child together.
The court may consider the parties' finances; the rights of any spouse, former spouse, civil partner or former civil partner; children; the length of the relationship; contributions to the home; effects on earning capacity and responsibilities; and any conduct it would be unjust to ignore.
Children
Children have no automatic fixed share under a will, but a child may apply under section 117 of the Succession Act 1965 if the parent failed in their moral duty to make proper provision. The spouse's share cannot be reduced by the claim.
The court considers the number, ages and circumstances of the children; the deceased's means; and provision made during life, such as education costs or a site. Give your solicitor details of every child, including non-marital children, and explain any decision not to benefit a child so the estate can respond to a later claim.
What if I am separated, divorced or an unmarried partner?
Separation does not result in your spouse automatically losing their right to your property, however this right can be cancelled by means of a separation agreement. In the case of divorce your spouse’s automatic right to a share of your property is extinguished. In the case of unmarried partners there are no automatic rights to each other’s property regardless of length of time living together.
Property abroad
If you own property abroad, obtain advice in each relevant country because succession laws differ. Under EU Regulation 650/2012 (Brussels IV), a person with property in an EU Member State other than Denmark may state that the law of their nationality is to apply.
Changing or revoking a will
A change must be properly signed and witnessed. It may be made beside the relevant wording, by a clearly referenced signed memorandum, or by a separate codicil. If there are several changes, a new will is usually clearer.
A will may be revoked by a later valid will or other properly executed revoking document; by intentionally burning, tearing or destroying it; or by directing someone to destroy it in your presence. Marriage or civil partnership normally revokes an earlier will unless that will was expressly made in contemplation of it. A revocation may be challenged if the testator lacked capacity.
If there is no valid will
The Succession Act 1965 rules apply where there is no will, a will is invalid or successfully challenged, or assets are not covered and there is no residuary clause:
Spouse or civil partner, no children: the survivor receives the entire estate
Spouse or civil partner and children: the survivor receives two-thirds and the children share one-third; descendants take the share of a child who died earlier
Children only: they share equally, with descendants taking a deceased child's share
Parents only: they share equally, or the surviving parent receives all
Brothers and sisters only: they share equally, with their children taking a deceased sibling's share
Nieces and nephews only: the survivors share equally
Other relatives: the nearest relatives of equal degree share equally
No relatives: the estate passes to the State
Lifetime gifts and joint accounts
A lifetime gift may give rise to Capital Acquisitions Tax. A court may also restore property to the estate if it was given away to unfairly reduce a spouse's, civil partner's or child's rights.
Money in a joint account with a spouse, civil partner or child usually passes to the surviving holder. If an account is opened with another person only to help manage money, record clearly that the helper is not intended to own the balance after death.
Avoiding disputes
A gift may fail because the asset no longer exists, the beneficiary is unclear, the description is inaccurate, or the beneficiary witnessed the will. Use clear language and identify both assets and beneficiaries precisely.
If a dispute reaches court, the will is read as a whole and words normally receive their ordinary meaning unless used technically. Letters or earlier notes may sometimes help explain the testator's intention. A will may also be challenged for undue influence where pressure or duress prevented the testator from acting freely.
Access to the will after death
Once a Grant of Probate issues, the will and grant become public documents and copies may be obtained from the Probate Office or District Probate Registry on the prescribed form and payment of the fee. The grant identifies the personal representative, any solicitor acting, and the gross and net estate values.
Detailed estate information is not generally public, but the Inland Revenue Affidavit or Statement of Affairs (Probate) SA.2 may be inspected by certain people, including a named beneficiary, a person entitled to a share, or a child entitled to bring a section 117 claim.
Making a will should not be confined to any one age group and should not be put off until later in life. It is inadvisable to make a will by yourself always seek professional help as you may make mistakes if you are not familiar with the legal terms. Moreover, your intentions could be ambiguous and some errors could render your will invalid. Don’t put off what you can do today
The material contained in this article is for general guidance only and does not constitute legal or other professional advice. You should seek legal advice from your own Solicitor. Every effort has been made to ensure the accuracy of the content and no liability whatsoever is accepted by Murphy Rice & Co for any action taken in reliance on any information in this article. 