Guide to Making a Will: Key Considerations Explained (Part I)

Introduction

A will is an important document as it allows a person to decide who their assets will go to upon their death and it is imperative that it is correctly executed so that it accurately fulfils their intentions.

In part I of our Guide, we examine the importance of making a will, outline the key requirements to consider and explain the rules governing the execution of a will.

What is a Will?

• A will is a written document setting out an individual’s wishes as to how their assets are to be distributed after their death.

• A codicil is a supplement to a will either altering or adding to the provisions already contained in the will. It is executed in a similar fashion to the will.

• A will does not have to be in any particular format but it must comply with the provisions of section 77 and section 78 of the Succession Act 1965.

Why is it Important to Make a Will?

• One of the main reasons for making a will is to ensure that your wishes as testator, which is the person making a will, are implemented on your death. It enables the testator to carry out an element of tax planning and to utilise reliefs and exemptions that may be available to minimise the capital acquisitions tax payable by the beneficiary on taking the inheritance.

• It also enables the testator to extend the tax-free thresholds available, by including for instance the children of a beneficiary in the inheritance, and so adding additional tax-free thresholds.

• The personal representative takes their title from the will and this allows them to carry out certain acts before the probate is granted. For example, they could settle debts which would stop interest running or they could insure a property. An administrator cannot do this when there is an intestacy, where there is no will and the next of kin inherits, as the administrator only takes his title when the letters of administration and testate issue.

• A testator can provide for certain beneficiaries who may need additional protection such as minor children, incapacitated beneficiaries or improvident beneficiaries and can provide for them by means of a discretionary trust. The only trust that can be created on an intestacy is a bare trust where property is held for minor children until they become adults at 18 years of age.

• Significantly more powers and discretion can be given to trustees when a discretionary trust is created or alternatively a fixed trust. This can only be done through a will. It cannot arise on an intestacy.

• If there is no will, then the property will pass under the rules of intestacy and the testator has no control over varying the application of those rules.

What are the Requirements for Making a Valid Will?

The requirements for making a valid will are provided for in section 77 and 78 of the Succession Act 1965, outlined as follows:

• The testator must be at least 18 years of age or have been married if under that age.

• The testator must be of a sound disposing mind. This is actually a legal test not a medical test.

• The will must be in writing.

• It must be signed by the testator as per the rules of execution or it can be signed at the testator’s direction. This would usually apply in a situation where the testator was blind or perhaps had suffered a stroke and could verbalise his instructions but would not be physically able to sign.

What are the Rules of Will Execution?

• The will must be signed at the foot or the end of the will.

• The signature must either be witnessed by or acknowledged in the presence of two witnesses. Where a testator is blind or is suffering from a physical impairment that stops them from being physically able to sign they can direct another person to execute the will on their behalf arising from their physical debility. In those circumstances an Affidavit of attesting witness would be required when proving the will.

If the will refers to a list such as a list of jewellery or furniture that is to go to specific people, or maps in particular if portions of land are being bequeathed to various beneficiaries, then these lists or maps must be in existence at the time that the will is made. They must also be referred to in the will as being in existence and they must be clearly identified.

It is important that nothing is attached to a will unless it is a list or map as referred to earlier. If there are any pinholes, paperclip marks or evidence of the page that the will is written on having been torn from another document these all have to be dealt with by way of an Affidavit of plight and condition when an application is made to prove the will.

Conclusion

A will is a written document signed by the testator in the presence of 2 witnesses.  It allows the testator to decide who will administrator their estate and to determine who will benefit from their assets.

It also allows the testator to tax plan and minimise the amount of inheritance tax that will be payable by the beneficiaries to their will.

Further Information

Please see our Guide to Making a Will: Foreign Wills and Witness Requirements (Part II) to understand how a will can be revoked, when foreign wills are relevant to consider and the requirements for a witness.

For expert legal guidance on making a will, please contact Caitriona Gahan, Head of our Wills, Probate & Estate Planning Team.

For further details, see our Wills & Trust Wills, Estate Planning and Inheritance Tax pages.