A will is a formal document which sets out how a person (the ‘testator’ – or ‘testatrix’, if female) wishes to dispose of his or her property on death. A person may make as many wills as he or she wishes, but the only relevant one is the last valid will made before death. Copies of the latest will and the Revenue affidavit should be shown to everyone concerned, especially if court proceedings are contemplated. McDonald J in K v K  IEHC 615 said the Revenue affidavit was “an essential document in any case of this kind and, under the Data Protection Acts, the processing of personal data is permissible where it is required (inter alia) for the purposes of, or in connection with, legal proceedings”.
For a will to be valid in Ireland, the testator must:
‘Signature’ can mean the initials of the testator or, in the case of an illiterate or severely disabled person, a mark. In the unreported 2001 High Court case of In Bonis Cloney, the court accepted an X as a signature. In the case of In bonis Cook  1WLR 353, the court approved a will signed simply “Your loving mother”. But with a feeble signature or a mark, the witnesses will have to provide a sworn statement, confirming that the will was read over by (or to) the deceased and that he was of sound mind, memory and understanding.
A will is not necessarily invalidated simply because the signature does not immediately follow the last word or is after the witnesses’ signatures – but any writing after the testator’s signature is normally excluded. The courts have ruled a will invalid where the signature of the testatrix was at the top of the page. A will which does not comply with these provisions will still be valid if it complies with the law:
A testator must:
Capacity to make a will may be proved by a sworn statement from a doctor, solicitor or other independent professional who attended the deceased at the time the will was made. In the last resort, the courts will decide whether a testator had testamentary capacity or whether he was subject to duress or undue influence (Lambert and Anor v Lyons and Ors  IEHC 29). If a beneficiary is incorrectly named, the court may admit extrinsic evidence to decide the correct beneficiary (Black v Ann O’Sullivan Centre Ltd and Ors  IEHC 695).
A blind person can make a will, but a sworn statement will be required from one of the witnesses, confirming that, if the testator had not been blind, he could have seen the witnesses sign. But a blind person cannot be a witness as he cannot see the testator sign.
A witness or his spouse cannot benefit under a will. A clause agreeing a fee for drawing up or executing the will is also void if the solicitor or a member of his firm (or their spouses) acts as a witness. An executor who acts as a witness will lose any benefit. A person who signs a will merely to show that he agrees with its contents, may benefit (although the will should indicate that this is the case). A witness or spouse may benefit where:
A will should contain:
The revocation clause must revoke codicils and other testamentary dispositions, as well as former wills. The executors, who should be likely to outlive the testator, should be clearly identified. “I appoint AB and CD as my executors” or “I appoint AB as my executor, or, if he/she cannot or will not act, CD” would do, but “I appoint AB or CD as my executor” would be void for uncertainty.
Without a residuary clause, any property not specifically mentioned would pass according to the rules of intestacy according to the 1965 Succession Act and, if any of the other specific gifts should fail, the property involved would become part of the residue. An undated will is not necessarily invalid, but a witness will have to swear that the will was executed before the testator died.
The testimonium indicates that the 1965 Succession Act has been complied with. Its absence will not invalidate the will, but the Probate Office will require an affidavit from a subscribing witness. The clause might read: “Signed by the testator as and for his last will and testament in the presence of us, both present at the same time, and signed by us in his presence.” The witnesses normally sign under this clause, but the will is not invalidated if they sign elsewhere.
Wills ‘speak from death’, and are interpreted as if they had been executed immediately before the death of the testator, unless the will itself specifies otherwise. (The judge said in K v K: “Any testator or testatrix can, as a matter of fact, change their will at any time prior to death...”) If any children of the testator die before him, any bequest will automatically pass to their children. If two or more people die and it is not possible to establish who died first, they are presumed to have died simultaneously (the doctrine of commorientes).
If the will is in a foreign language, a translation may be admitted to proof. Any obliteration, insertion or alteration in a will after its execution is invalid unless the testator and witnesses sign near the alteration or unless the changes are proved to have been in the will before its execution. If the will refers to any documents, they should be produced. If a will is written in pencil, a copy in red ink must be produced for the Probate Office. An official copy of any will or grant of administration may be obtained from the Probate Office in Dublin or from a district probate registry.
In the case of a person who dies intestate (without making a will), an administrator (or administratrix, if female) may be appointed instead of an executor to carry out the distribution of the estate. An administrator of a will should not delay unduly in carrying out this task, or the court may remove him. (Muckian and anor v Hoey and ors  IEHC 688).
The court has discretion to “revoke, cancel or recall” any grant of probate. (Dunne and Ors v Dunne  IECA 269), though its “primary duty” is to “ascertain and give effect to” the testator’s intention (per Laffoy J in Re Rafter: Thornton v Timlin  IEHC 239).
If a testator is married, he must make proper provision for the other spouse and children. If there are no children, a surviving spouse has a right to half the estate, including the family home. If there are children, they have a right to one third of the estate. If a testator has disposed of property within three years of death in an attempt to disinherit a spouse or children, the court may rule the disposition void.
A spouse’s ‘legal right’ takes precedence over any other bequests, although it may be renounced in writing at any time while the testator is still alive. A spouse who has deserted or committed a serious offence against the testator or his/her children loses the right to a share in the estate. The legal right may be extinguished following a judicial separation and disappears after a divorce.
A husband and wife’s mutual rights to succeed to each other’s estates may also be extinguished by the court at any time on or after a decree of judicial separation, under the Family Law Act 1995. (Succession rights can be extinguished after a divorce, unless the surviving spouse claims within six months of probate under s 18 of the Family Law (Divorce) Act 1996. Where a marriage is void, the partners are not spouses and these provisions do not apply.)
If the testator failed to make proper provision for any children in the will, a child (of any age – EB v SS  4 IR 527) may bring an application under s 117 of the Succession Act within six months from the first taking out of representation – although a mature applicant will have “a heavy onus to discharge” (Re IAC  2 IR 143). The court will consider the application in chambers, from the point of view of a “prudent and just parent”, taking into account:
The requirements for a successful s 117 application are set out in Re ABC: XC v RT  2 IR 250, and further clarified in A v C  IEHC 120. A child who has been found guilty of an offence punishable by two years’ imprisonment or more against the deceased (or any spouse or child of the deceased), may not make a s 117 application.
A straightforward will might read:
This is the last will and testament of Catherine O’Brien of Ailesbury Road in the City of Dublin. I hereby revoke all previous wills and testamentary dispositions made by me. I appoint my brother Al and my sister Sal as executors of this will and direct them to pay my just debts, funeral and testamentary expenses.
To my housekeeper Vera, I leave €50,000 (fifty thousand euro) in cash. I leave €10,000 (ten thousand euro) from my First National building society account to the Stephen’s Green Cats’ Home. I leave my Rodin statue to my chauffeur Brendan. I leave my house at Ballinteer to my brother Vinnie.
All the residue and remainder of my property of any nature and description and wherever situated, I leave in equal shares between my children, Bobbie and Barbie.
Dated this__day of_______ 20__
Signed by the testatrix as and for her last will and testament in the presence of us, both present at the same time, and signed by us in the presence of the testatrix.
In the case of a legacy payable out of specific funds (such as the one from the building society account), if the subject of the legacy (that is the cats’ home) no longer exists at the date of death, the legacy will be extinguished or adeemed. If, on the other hand, the source of the legacy has ceased to exist, but the residue is enough to cover the legacy, it may be paid out of the residue.
A legacy may fail where:
“Ademption” happens where the testator leaves a specific asset (for example a work of art) but sells it before dying. “Abatement” means the legacy has to be reduced because there are insufficient assets to cover all the dispositions. The abatement may be pro rata.
A will may only be revoked by:
An earlier will is only revived by re-execution or a duly-executed codicil. A declaration of intent to revoke a will must be executed in the same way as a will. A letter to a banker or solicitor who holds the will, asking him to destroy it, would revoke the will, whether or not it was actually destroyed. If no other will is executed, this would produce an intestacy. A will may be destroyed by someone in the testator’s presence and by his direction.
If the original will has been lost, advertisements should be placed in suitable newspapers to try and find it. A copy will is not normally acceptable, in case the original will was revoked – perhaps by destruction. But, if a copy exists, the High Court may be asked to admit it to proof. The solicitor or person who made the copy will must swear that it is authentic. If no copy of the original exists, someone with means of knowledge (such as a person who has the original on their computer or phone) may give evidence so the will can be reconstructed.
Under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, qualified cohabitants may also apply for provision to be made for them out of a testator’s estate, as may same‐sex couples.
Note: although the Supreme Court of Queensland in Australia in 2017 accepted an unsent phone text message as a 55-year-old man’s official will, this isn’t an example to follow! For full information about succession law, see the Succession Act 1965
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