The importance of having a will


A Will is a formal document which sets out how a person (the “testator” if male – or “testatrix”, if female) wishes to dispose of his or her property on death. It is very important when making a Will that the proper arrangements to be made for your dependants and your property after you die are outlined.  If you die without having a Will, the law on intestacy decides what happens to your property.

A person may make as many Wills as he wishes, but the only relevant one is the last valid Will made before his death.

For a Will to be valid in Ireland, the testator must:

  • be aged 18 or over (or be – or have been – married),
  • act of his own free will and,
  • be of sound mind, memory and understanding

And

  • the Will must be in writing
  • the document must be signed at the end by the testator (or by someone in his presence and by his direction)
  • the signature must be written and acknowledged in the presence of two witnesses, both present at the same time
  • the witness must sign in the presence of the testator , but not necessarily in each other’s presence

A person who dies having made a valid Will is said to have died ‘testate’. If you die testate, then all your possessions will be distributed in the way you set out in your Will. It is the job of the executor or executors you named in your Will to make sure this happens. An executor can be a beneficiary under the Will. In other words, the executor can also inherit under the Will.

After you die, somebody has to deal with your estate, by gathering together all your money and possessions, paying any debts you owe and then distributing what is left to the people who are entitled to it.

A person who dies without a Will ill is said to have died ‘intestate’. If you die intestate, this means your estate, or everything that you own, is distributed in accordance with the law.

In these cases, after debts and expenses have been deducted, the estate is distributed in the following way.

If you are survived by:

  • A spouse/civil partner but no children (or grandchildren): your spouse/civil partner get the entire estate.
  • A spouse/civil partner and children: your spouse/civil partner get two-thirds of your estate and the remaining one-third is divided equally among your children. If one of your children has died, that share goes to his/her children.
  • Children, but no spouse/civil partner: your estate is divided equally among your children (or their children).
  • Parents, but no spouse/civil partner or children: your estate is divided equally between your parents or given entirely to one parent if only one survives.
  • Brothers and sisters only: your estate is shared equally among them, with the children of a deceased brother or sister taking his/her share.
  • Nieces and nephews only: your estate is divided equally among those surviving.
  • Other relatives only: your estate is divided equally between the nearest equal relationships.
  • No relatives: your estate goes to the state

In general, you are free to dispose of your belongings or estate as you wish, but your Will is subject to certain rights of spouses/civil partners and other more limited rights of children. This is a very complex area and at Geraghty & Co., we will be able to advise on the different rights of spouses/ civil partnerships and children.

It is extremely important when making a Will that you seek the advises of your solicitor to make sure the Will is valid and that your wishes will be carried out.

Many people will be familiar with the recent High Court case in respect of the estate of the late poet and author, John O’ Donoghue, author of the best-selling “Anam Cara” book. Mr. O’ Donoghue left an estate of over €2 million euro.  He made a Will without seeking legal advice. The will was declared void by the High Court due to the uncertainty of it’s terms and meanings.  Also the mistake had been made of having his mother and brother witness the Will, depriving them both of benefiting as the law prohibits a witness to a Will being a beneficiary.   The result of this finding was that the entire will fell into intestacy and was distributed in accordance with the law as outlined above.  Mr. Justice Paul Gilligan stated in this case that making a Will is one of the most important tasks that people face and that that a properly drawn up Will, prepared with legal advice should ensure that a Testators wishes for distribution of their estate will be fully complied with.

At Geraghty & Co., Solicitors we would be delighted to advise you on any matter in respect of making a Will or extracting a grant of probate.  If you have any query in respect of this, please contact us for a consultation  either by phone on 091-565258 or email us at enquires@geraghty.ie or use the ‘Contact Us’ section of our website.

Please note that the above information is for general purposes only and does not constitute professional legal advice. If you require specific advice on any legal matter then please contact us by phone on 091-565258 or by email at enquiries@geraghty.ie