Practice Area » Wills

Wills

Many people are reluctant to consider making a Will, believing it to be bad luck or tempting fate. At that same time, people generally do not have any objection to insuring their house (against the event of it burning down) or insuring their lives (against the event of their death). When put in this context, not only is it unwise not to make a Will, it is negligent, in some respects, not to do so. This is in particular the case if a couple have young children.

Basically, anyone over the age of 18 who is of sound disposing mind can make a Will. (For detailed description see S. 77 of the Succession Act, 1965.) Ideally, everyone should make a Will, but especially if you have acquired property and/or married and/or have children.


  Topics discussed include :-


Making a Will

  1. You place yourself in a position to provide for the disposition of your estate by means of a written document which will only comes into effect when you die.
  2. Disputes regarding specific assets can be avoided.
  3. It allows you to provide for the special needs of family members or relatives.
  4. If you don't make a Will you lose your opportunity to appoint a person (an Executor) whom you particularly trust to handle your affairs.
  5. In addition, your Estate will be divided in accordance with the Law of Intestate succession (in equal shares between nearest relatives - whether you liked or even knew them!) and not necessarily in the way you might have wished.
  6. Many estates only comprise the family home. If no will is made, the estate is divisible as to two thirds to the surviving spouse and one third to the children. This means that the spouse may not have control of the family home.
  7. Making a Will is easy. Provided you are clear about how you wish to dispose of your property, it can be done in minutes and the formalities are reasonably simple.
  8. A Will is not permanent. It can always be amended and only comes into effect when the Testator dies. Therefore, the Will may be changed as many times as is necessary prior to death.
  9. A Will is only made for the circumstances at the time the Will is made. If those circumstances change, then change the Will.
  10. A Will is confidential. Neither the beneficiaries nor the Executor are aware of the contents of the Will unless directed by the Testator.
  11. A Will can be tax efficient. With the relatively high tax rate and the increase in wealth in Ireland, tax advice can avoid Estates paying large sums of money in tax to the State.
  12. Making a Will gives peace of mind.

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Married Couple Considerations

The most common situation that a will is made, is by a married couple. Frequently, the simplest solution is for a spouse to leave everything to the other spouse, as at present there is no tax on benefits passing between spouses.


    For Example :

I, Joe Bloggs of 1 Main Street, Killarney, County Kerry hereby revoke all previous Wills and other testamentary dispositions heretofore made by me and I declare this to be my last Will. I give, devise and bequeath all my property of every nature and description to my wife, Mary Bloggs, and appoint her sole Executrix of this my Will.

Dated this

SIGNED etc.

Mrs. Bloggs would make a similar will.

The above will cover the vast majority of situations. However, the arrival of children gives rise to special considerations. The probability of both parents dying before their children, while still under the age of eighteen and therefore minors, is slight, but, in the event of it occurring (for example, in a car accident), the consequences for the children is enormous.

In addition to the appointment of Executors, thought must be given to the appointment of Testamentary Guardians - someone who will stand in loco parentis in your place. It is obviously an important decision since asking someone to take care of your children after your death can be the most onerous of tasks and not lightly undertaken. You must ask yourself who would best look after your young children on your death. Usually, a close relative is chosen and the Executors can act as both executor and testamentary guardian.

In contrast, if a Testamentary Guardian is not appointed, only the President of the High Court can appoint one - this is both time consuming and stressful on the family, at a time when it is least needed. Each family will feel obligated to be seen to apply to be appointed as Guardian. This may evolve in to a competition between the families and give rise to tensions.

The will set out below is a form of will recommended for a couple with young children.


    For Example :

I, Joe Bloggs of 1 Main Street, Killarney, County Kerry hereby revoke all previous Wills and other testamentary dispositions heretofore made by me and I declare this to be my last Will. Should my wife, Mary Bloggs survive me for a period of thirty days, then and in that event, I GIVE DEVISE AND BEQUEATH all my property of every nature and description to her and I appoint her as sole Executrix of this my Will. If my wife should not survive me as aforesaid, then and in that event I direct that the following provisions shall have effect: -
  1. I APPOINT John Doe and Jane Doe of 1 High Street, Killarney, County Kerry (hereinafter called "my Trustees") as Executors of this my Will and I also appoint them as Trustees for the purpose of the Settled Land Acts, Conveyancing Acts and Section 57 of the Succession Act 1965.
  2. I GIVE DEVISE AND BEQUEATH all my property of every nature and description to my Trustees upon trust to call in and convert same into money at such time or times and in such manner as they shall think fit, in trust for my children, Mary, Pat and Gemma and such other child or children of mine as may be alive at the time of my death, until my youngest child has attained the age of twenty-one years and then to my said children in equal shares.
  3. I DIRECT that the power to apply income and to accumulate surplus income during minority, conferred by Section 43 of the Conveyancing Act, 1881, as amended, may be exercised by my Trustees in their absolute discretion.
  4. I DIRECT that any advancements (as defined in Section 63 of the Succession Act, 1965) made by my Trustees, be it to all or any of my children, shall be taken as being made in or towards satisfaction of the share of such child in accordance with Section 63 (1) of the Succession Act, 1965.
  5. Notwithstanding the provisions of Part One of the Trustees Act, 1893, as amended, money liable to be invested under this my Will may be invested or applied in the purchase of or on interest upon the security of such stocks, funds, securities and such other property of whatever nature and description as my Trustees in their absolute discretion shall think fit and to the intent that my Trustees shall have the powers in all respects as if they were the absolute owners beneficially entitled to the same.
  6. I APPOINT my Trustees as Testamentary Guardians (in accordance with Section 7 of the Guardianship of Infants Act, 1964) of my children Mary, Pat and Gemma, and such other child or children of mine as may be alive at the time of my death.
Dated this

SIGNED etc.

Essentially, the trustees are put in the same place as the parents in dealing with children. The are given extensive powers to deal with assets, which must be used at all times in the best interests of the children. The will can be tailored to the individual needs of each family.

Many people agonise about selecting the trustees primarily because they are reluctant to tell them of the burden placed upon them. The following should be borne in mind:


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