How to Make a Will
A Will is a legal document that sets out how your belongings should be distributed after your death. It can also detail other wishes, such as who you want your executors to be.
There are strict rules about what can and cannot be included in a Will. There are also certain legal requirements for making a Will. If these are not followed, your Will could be considered invalid.
What should I include in my Will?
No two Wills look the same. Your wishes will be different to the next persons. However, there are some things that you should include in your Will, such as:
- Your full name and address
- A revocation clause, which revokes all former Wills and codicils you have made.
- The names and details of your executors. These are the people who will be responsible for winding up your estate after your death, so it is important to choose someone you trust. This can be a friend, family member or professional. An executor can also be a beneficiary.
- What legacies you wish to bequeath. These are gifts of money or goods to a named person. For example, ‘I wish to leave my wedding ring to my daughter Jane’.
- What devises you wish to bequeath. These are gifts of real property to a named person. For example, ‘I wish to leave my property and 10 acres of land to my son Thomas’.
- A residuary clause, which states who should inherit the remainder of your estate, once the legacies and devices have been fulfilled.
- Your signature and the date
- The signature of your two witnesses
- An attestation clause, stating the Will was signed in the presence of two witnesses
Depending on your circumstances, there are also certain wishes that you may or may not want to record. This includes:
- Legal guardians for your children or vulnerable beneficiaries
- Different types of Trusts
- Funeral arrangements, including whether you wish to be buried or cremated
You can change your Will at any point during your lifetime, so long as you are of sound mind. For minor amendments you can add a codicil. This is an additional document that outlines the changes you wish to make. If you want to make significant changes, it is better to revoke your Will and create a new one.
What cannot be included in a Will?
There are some things that your Will cannot cover. This includes:
- Foreign property – if you own assets abroad, you need to make a Will in that country. An Irish Will can only cover property in Ireland.
- Instructions for Trustees or legal guardians for your children. If you have particular requests about the upbringing of your children or the way in which a Trust should be handled, these should be recorded in a Letter of Wishes. This is made in addition to a Will.
- What medical treatment you want to receive, in the event that you lose mental capacity or cannot communicate your wishes. These decisions should be detailed in a Living Will instead.
Also, Irish law dictates that your spouse, civil partner and children all have a legal right over your estate. This means that you cannot disinherit them altogether.
In fact, your spouse or civil partner is entitled to one half of your estate if you do not have children, or one third of your estate if you do have children. There are two exceptions to this rule. The first is if your spouse or civil partner has formally renounced their right to a legal share of your estate. The second is if a court rules your spouse or civil partner ‘unworthy to succeed’. This only happens in extreme circumstances, such as when the spouse/civil partner has committed serious crimes against the deceased.
Your children do not have a precise right in the same way a spouse or civil partner does. Nevertheless, you have a duty to provide proper provision for them. If your child claims that you have failed to meet this moral duty, the Will may be challenged after your death.
Legal requirements for a Will
Every Will may look a little different – there is no set format that must be adhered to. However, a Will must meet the following legal requirements:
The Will must be in writing
Your Will must be in writing, whether handwritten or typed. Lots of people express wishes verbally during their lifetime, stating that they want a particular person to inherit their estate, or a specific gift. However, these wishes will not stand up unless they are set out in writing, in a legally valid Will.
You must be over the age of 18
You must be 18 years old or over to make a Will. The exception is if you are, or have been, married. If so, you can be under the age of 18. There is no upper age limit when making a Will, but you do have to be of sound mind.
You must be of sound mind
Being of sound mind means that you have the mental capacity needed to make a Will. You are of sound mind if you understand that you are making a Will, you understand the extent of your property, and you understand the implications of the terms of your Will.
If your mental capacity is in any doubt, you should ask a doctor to confirm your mental competency at the time of writing your Will. This evidence should be left alongside your Will. This can help refute challenges to your Will on the grounds of lack of mental capacity.
If you are suffering from ill health, there may also be concerns that you were acting under pressure or undue influence when you made a Will. You can help to quash these fears by leaving a Letter of Wishes, explaining your decisions. You should also use a Wills solicitor who is independent of any of your beneficiaries.
You must sign or mark the Will
You must sign and date your Will in front of two independent witnesses. If you cannot complete a signature because of ill health or injury, you can mark the document instead. If this is not possible, you can ask an agent to sign it on your behalf. This must be done in the presence of both you and your witnesses.
You must have two independent people witness your Will
Your two witnesses must also sign and date your Will. Again, this must be done in your presence. There are rules around who can act as your witness. Most notably, they must be over the age of 18 and they must not stand to inherit from your estate. This means they cannot be any of your beneficiaries or linked to your beneficiaries, whether through marriage or descent.
What happens if a Will is invalid?
If any of the aforementioned rules are not met, your Will is deemed invalid. Your estate is then treated as though you had died intestate, meaning without a Will in place. When this happens, the Irish intestacy laws determine who inherits what. This might not align with your wishes.
Can I write my own Will without a solicitor?
Because Wills have strict legal requirements, it is not recommended that you write your own Will. There is a significant risk that you’ll make a mistake, making the Will invalid.
If you do make an error, it won’t become apparent until after your death, by which point it will be too late. The contents of your invalid Will must then be disregarded and your estate distributed according to the intestacy rules instead. This will be hard to bear for any loved ones who are not provided for under the Irish Succession Act, such as unmarried partners, step-children and friends.
This comes as a shock to many, but cohabiting partners have no automatic right to each other’s assets. If your Will is deemed invalid, your partner’s only option will be to apply for provision from your estate. However, there is no guarantee that this application will succeed.
An invalid Will may also result in people inheriting from your estate, even though you would never have chosen them as a beneficiary. For instance, if you are separated from your spouse but not divorced, your estranged husband or wife will gain control over your estate.
Writing a Will with a solicitor
To ensure your wishes are fulfilled, you should write a Will with the help of a specialist solicitor. A solicitor can make sure that your Will meets all the legal requirements. This gives you peace of mind that it will be deemed valid following your death.
A Wills solicitor can also discuss your wishes and ensure they are properly recorded. Otherwise, part of the Will may fail. This is a common problem amongst DIY Wills, many of which do not include a residuary clause. This means that specific legacies are fulfilled, but there is no mention of what should happen to the remainder of the estate, which is known as the ‘residue’. Consequently, the residue of the estate is dealt with according to the intestacy laws.
Additionally, a Wills solicitor can advise whether any other legal mechanisms would be suitable in your circumstances. For example, you may benefit from putting a Trust into your Will. This can be used to protect vulnerable beneficiaries and to limit tax liabilities.
Making a Will with the help of a solicitor is a simple process. Typically, it involves the following five steps:
- You contact a Wills solicitor and discuss your requirements and wishes
- A Wills solicitor drafts your Will and sends it to you for review
- The draft Will is amended, if required
- You confirm you are satisfied with the final Will and sign it in front of two independent witnesses
- You receive a copy of your Will. A Wills solicitor may also offer to keep a copy in their offices
How can I get a copy of my Will?
Your solicitor will send a final copy of your Will to you. This should be stored securely. You should also tell your loved ones where it is kept. They can then locate your Will after your death. Your solicitor may also offer to store your Will. If your loved ones cannot find your Will after your death, they can contact your solicitor and request a copy.
Simple Will vs Living Will
When you make a Will, you may also want to consider putting a Living Will in place. Remember, a ‘simple’ or ‘basic’ Will is not the same as a Living Will. As mentioned above, a Will cannot specify what medical treatment you want to receive, should you lose mental capacity or be unable to communicate your wishes. However, a Living Will can do just that.
A Living Will, also known as an Advance Healthcare Directive, allows you to set out what medical treatments you do not want to receive. This includes CPR and life-sustaining treatments. You can also record your end-of-life care preferences and whether you wish to donate your organs.
Speak to a Wills solicitor
To make a legally sound Will that meets your needs, please contact the experienced Wills solicitors at Gibsons & Associates.