As we are often reminded, there are believed to be just two certainties in life: death and taxes. While this concept may feel somewhat bleak and daunting, it provides a strong basis in favour of creating, updating and correctly drafting ones Will. The advantages of keeping an up to date Will are countless, and correct drafting is paramount in the execution of ones wishes upon their death.
While there appears to be many reservations, particularly among younger people about making a Will, it is something that can be done relatively easily, cheaply and quickly, avoiding disastrous consequences down the line. Naturally, nobody wants to contemplate their own death, but worse than this is the hazardous risk of one’s hard earned assets not being passed on in accordance with their wishes. Wills are also used to appoint guardians in the event of one passing before their children reach eighteen. In this way, a Will is vital in securing a future for one’s family members and possessions.
If you do not make a Will, the law dictates who is entitled to your assets. When a person dies without making a Will, the rules of intestacy apply; these govern who is entitled to receive a person’s property should they die. Very often the application of the rules of intestacy results in the deceased person’s property being distributed in a manner that they would never have wanted. This is because the rules set out a list of people who are entitled to receive shares in the deceased’s property as well as the extent of these shares and the order in which they are entitled to receive them. For example, if you die leaving a spouse and children, your spouse will inherit two-thirds of your estate and your children will inherit the remaining one third in equal shares. If you die a bachelor, without any parents or children, your brothers and sisters will inherit your estate in equal shares. By making a Will you can choose who you wish to inherit your assets rather than this decision being made by the law. The testator has complete discretion when drafting their Will.
When you make a Will you also get to choose who will administer your estate. A Will allows you to name the person or persons who would be the most suitable and who you can be assured will carry out your wishes. If you do not make a Will this is also decided by the rules of intestacy and may fall to someone you would never choose. Dying without a Will can lead to a costly and arduous estate administration and result in professional fees being incurred that could have otherwise been avoided.
There are various requirements that must be complied with in order for a Will to be valid. While many of these inclusions and formalities may appear somewhat obvious, others are easily and frequently omitted, potentially resulting in a lengthy administration or total voidness or invalidity of a Will. If a Will is not valid or drafted properly, it can have catastrophic consequences.
The following are some of the main requirements for a valid Will:
- A testator must be over eighteen years of age, or be, or have been, married or in a civil partnership.
- The testator must be of sound disposing mind.
- The Will must be in writing.
- The Will must be signed at the foot or end by the testator. In a case where the testator is illiterate, this can be done by making a mark at the foot or end of the Will. A testator may also acknowledge a signature which has already been made, but must do so in the presence of the two witnesses at the same time.
- A Will must be witnessed by two people, the witnesses must sign their names in the presence of the testator; however, they do not need to sign their names in the presence of each other.
- A Will should appoint one or more executors, people who will carry out the testator’s wishes after they die.
Although these requirements may seem somewhat straightforward and simple to adhere to, the employment of a solicitor in the creation of a Will is always the best option. A trained professional will ensure the avoidance of any errors in validating a Will, in addition to paying attention to the fulfilment of other more complex requirements such as the complete disposal of a testators property through the inclusion of a residuary clause or otherwise.
The employment of a solicitor can also ensure optimum inheritance for the beneficiaries of a Will, as careful drafting can have a significant impact on the level of inheritance tax that may be payable by those inheriting or benefitting from the Will. The creation of a Will provides an opportunity to assess the position and consider what steps can be taken to minimise potential inheritance tax liability. The cost of making a Will can represent excellent value for money as it may decrease the tax burden and administrative difficulties that may have otherwise arisen.
It is important to note that there are a number of circumstances whereby a Will may be revoked; typically, the creation of a new Will revokes any previous Will. Marriage also generally revokes a Will unless the Will was clearly made in contemplation of that particular marriage. A person can also revoke a Will by destroying it, provided this was their intention. Upon the revocation of a Will, it is of utmost importance to create a new Will, otherwise the person will be deemed to have died intestate, regardless of whether or not they have previously made a Will.
There is no good reason not to make a Will. It is always advisable to draw up a Will based on your present set of circumstances which can be easily amended at any point in the future. It is important to seek professional legal advice when drawing up a Will, in order to limit the possibility of dying intestate.
Karen Walsh, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200. Walsh & Partners specialises in personal injury claims, conveyancing, probate and litigation.
Disclaimer: While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.