You are allowed to make a Will without a solicitor, but you run the risk of making a mistake. At best, this could cause a gift to fail. At worst, it could invalidate the entire Will, meaning your estate is distributed according to the Succession Act instead.
Wills Solicitor vs DIY Will
There is nothing stopping you from making a do-it-yourself or ‘DIY’ Will. However, it is advisable to use a solicitor. This ensures that your Will is legally valid and incorporates all your wishes. It can be difficult to achieve this on your own. This is because Wills are legal documents – they are based on complex laws and require a sound understanding of the rules. If you get it wrong, your Will could cause more harm than good. Indeed, certain beneficiaries may receive nothing, even though you had intended to leave them all (or part of) your estate. In turn, this could lead to an expensive and protracted legal battle after your death.
Sadly, this is a reality many families face in Ireland on a yearly basis. Unmarried partners are especially at risk because they are not automatically entitled to receive anything under the Succession Act. This means that if you fail to make a legally valid Will, in which you provide for your partner, he/she could be disinherited completely. It does not matter how many years you have been together. There is no such thing as a common law marriage in Ireland, so unmarried partners are not recognised by the intestacy laws.
Using a Wills solicitor is therefore a form of insurance. It may cost more money, but it guarantees that your wishes are fulfilled after your death. This is a small price to pay – not only for your own peace of mind, but for that of your beneficiaries too.
Potential pitfalls of DIY Wills
If you are still tempted to go down the do-it-yourself route, it is worth noting that DIY Wills are associated with a number of pitfalls. Often, this results in the families having to seek legal advice following their loved one’s death. If the matter cannot be resolved, the dispute may end up in court.
Some of the most frequent pitfalls of DIY Wills are that:
- The Will has not been executed properly
- The Will has not been witnessed properly
- The Will lacks clarity/has not been properly worded
- A gift in the Will fails
- The Will is open to legal challenges
- The Will is silent on certain matters
- The Will has been unknowingly revoked
We explore each of these below to help you understand the complexities of Wills, and the possible downsides of drawing up a Will without a solicitor.
The Will has not been executed properly
Perhaps the most common issue that arises in relation to DIY Wills is that the document has not been executed properly. For a Will to be valid, it must be:
- In writing
- Signed by the testator (the person making the Will) in front of two independent witnesses
- Signed by two independent witnesses in front of the testator
This might sound simple, but actually, it is amazing how often people get it wrong. In particular, there is a danger that the testator does not sign the Will at all, or fails to sign it in front of their witnesses. If the testator cannot complete their signature due to injury or illness, he/she can mark the Will instead, or ask a representative to sign on their behalf. Either way, this must be done in the presence of two witnesses.
If a Will is not executed properly, it will be considered invalid. Normally, this only becomes obvious after the testator’s death. The contents of the Will must then be disregarded and the estate distributed according to Irish intestacy laws instead. This is a tragic outcome for such a simple mistake, yet the law clearly states that if the Will is not executed properly, it cannot be upheld.
The Will has not been witnessed properly
The Will must be signed by two independent witnesses. This must be done in the testator’s presence. It is not sufficient to drop a Will off at a witness’s house, ask them to sign it and collect it later. A testator must be there when the witness signs the document.
Additionally, these witnesses cannot be beneficiaries, nor can they have any connection to your beneficiaries. A ‘connection’ means that someone could stand to benefit from your estate, even though he/she is not a named beneficiary. For example, if you leave an asset to your son, his wife may stand to benefit from your estate, on account of the fact that she is married to him.
This is a little-known fact and it is one that often invalidates Wills – either partially or wholly. If you do use a beneficiary as a witness, the gift left to that beneficiary must fail. This is precisely what happened in the case of John O’Donohue, the Irish poet, author and philosopher. He asked his mother and brother to witness his Will, even though they were both named as beneficiaries. A court case ensued after his death, in which the judge ruled that the Will was invalid. Mr O’Donohue’s €2million estate was then distributed according to the Succession Act.
The Will lacks clarity
The other problem with Mr O’Donohue’s Will was that it lacked clarity. He requested that his estate be distributed amongst his family, yet there was no definition as to who he considered to be his ‘family’. Other Wills might request that a gift be made to ‘Mary O’Grady’, for example, yet the deceased may have more than one relative called Mary O’Grady.
Furthermore, there can be confusion as to the location or nature of the gift. This is particularly problematic when land is gifted to a beneficiary. The deceased may have known a parcel of land by a certain name – such as the ‘sheep paddock’ – but this does not provide a concrete definition. This could pave the way for a legal challenge following the testator’s death. The only way to avoid such issues is to provide marked maps and other evidence to remove any doubt.
If the wording of a Will contains any ambiguity, a judge will be asked to interpret the testator’s wishes. If the judge is uncertain as to the testator’s intentions, the Will must be considered void.
A gift in the Will fails
A poorly worded Will can also cause a certain gift in the Will to fail. Again, this might occur because the gift is not specific and so cannot be identified. It might also happen if a beneficiary pre-deceases the testator, yet a substitute beneficiary is not named.
So, the testator might say that they want their property to be inherited by their brother Patrick. A Will should state that if Patrick has already died, it should instead be inherited by a different beneficiary. If a Will fails to make this provision, there will be a ‘partial intestacy’. The gift will then form part of the residue of the estate. Or, if there is not a residuary clause, it will be dealt with according to the intestacy laws.
The Will is open to legal challenges
There are various reasons why a Will may be contested after the testator’s death. This includes if:
- The testator’s mental capacity is called into question
- There are concerns that the testator was acting under duress
- Certain beneficiaries are not given proper financial provision
With the correct forward planning, it is possible to pre-empt – and help to avoid – such legal challenges.
For example, if the testator wrote their Will despite having a condition such as dementia, any disgruntled beneficiaries may later say that he/she was not of sound mind. They may argue that the Will should therefore be deemed invalid. To avoid this, the testator can ask a medical professional to verify their mental capacity at the time of writing their Will. Although this cannot bar legal challenges being made, it will help to refute any future allegations.
Similarly, there may be claims that a testator was put under pressure to write their Will and to name certain beneficiaries (or indeed, to cut certain beneficiaries out). To limit these suggestions, a testator should use a solicitor independent of their beneficiaries. He/she can also leave a letter of wishes, explaining the reasoning behind their decisions.
It is also important to remember that in Ireland you cannot exclude certain people from your Will. For instance, your spouse has a legal right to a share of your estate, while your children must be given proper financial provision. Some DIY Wills fail to realise these obligations, leading to a prolonged and bitter legal battle after the testator’s death.
The Will is silent on certain matters
Sometimes it is what the Will does not say – rather than what it does say – that causes problems. A particularly common issue with DIY Wills is that they fail to include a residuary clause. The residue of the estate is everything that is left over, once all the debts and specific gifts/legacies have been fulfilled.
So, a testator might say they want their granddaughter Rebecca to inherit their wedding ring and their grandson Michael to receive €1,000. The residue of the estate is left to their daughter Claire. It is important to word it this way, because no one actually knows how much their estate will be worth at the date of their death. If the testator says they want their daughter Claire to inherit the remaining €100,000 – but there is only €50,000 left in the estate – this gift will fail. Instead, it is better to name residuary beneficiaries. These people will inherit whatever is left over.
If a Will fails to include a residuary clause, the residue will be dealt with according to the intestacy laws. This means that the majority of an estate may actually be distributed according to the Succession Act, rather than the testator’s wishes. This also happens if a beneficiary pre-deceases the testator, and the testator has failed to name substitute beneficiaries/include a residuary clause. In this instance, the gift will be distributed according to the intestacy laws.
The Will is unknowingly revoked
There are certain situations in which a Will is automatically revoked. This includes if you marry or enter into a civil partnership, unless you have made the Will in anticipation of the marriage/partnership. That is why it is essential to update your Will shortly after you have said “I do”.
Not many people realise this and it can create difficulties if the testator wants someone other than his/her spouse to inherit their assets. For example, imagine two people meet later in life. They are both financially stable and both have children from a previous marriage. Because of this, they want to leave their assets to their respective children, rather than to each other. They have made Wills expressing these wishes. They then decide to get married – but they fail to realise that their Wills have now been revoked. Consequently, when the first person dies, he/she is deemed to have died intestate. The majority of their estate is then given to their spouse, rather than their children, because that it what the Succession Act dictates.
This situation is known as the sideways disinheritance trap. It is a pitfall many couples fall into and the outcome can be devastating for the would-be beneficiaries. But there are ways to avoid it. The first, of course, is to make a new Will shortly after getting married or entering into a civil partnership. The other is to include Trusts in your Will. These allow you to ring-fence assets for named beneficiaries, but can also protect your spouse or civil partner during their lifetime.
Contact a Wills solicitor
If you choose not to use a Wills solicitor and you make a mistake, the consequences could be costly – particularly for those you are leaving behind. This is ironic, as the very purpose of a Will is to protect those you love most.
To avoid these risks, it is prudent to seek professional advice when drawing up your Will. A solicitor can create a Will tailor-made to you and your circumstances. This will meet the necessary legal requirements, incorporate all your wishes, and be worded in a clear and concise manner – eliminating any ambiguity or confusion. A solicitor can also advise you on how to avoid any potential problems – whether by naming substitute beneficiaries, including a Trust or writing a letter of wishes.
To speak to an experienced Wills solicitor, please contact us at Gibsons & Associates.
Complete our online enquiry form, or phone us on 01 872 3143 today.