Wills and Intestacy

A will is a document in which the person signing it directs what is to happen to their property after their death. A person who makes a will is called a testator. A will has no effect until the testator dies. A testator can change a will at any time. Therefore a testator can make a number of wills. Usually a testator will specifically state in each will that all previous wills are revoked. It is the provisions of the last will which will prevail in law.
The formalities for making a will are very strict. They are set out at Section 78 of the Succession Act, 1965. A will must be signed at the end by the testator and witnessed by two witnesses. The two witnesses must be present when the testator signs and they must sign their names as witnesses in the presence of the testator. If the formalities are not observed then the will is invalid. Because a will does not come into effect until the testator dies it is essential that it clearly states what the testator intends. If there is any doubt about the meaning of the will the testator will not be alive to clarify what is meant and it will usually take Court proceedings to resolve the difficulty. To avoid these problems you should always employ a solicitor to make a will for you.
When someone dies without having made a will they are said to have died intestate. In this event their property is divided in accordance with the rules for distribution on intestacy set out in the Succession Act, 1965. For example, if an intestate leaves a spouse and no children then the spouse takes the entire estate. If the intestate leaves a spouse and children then the spouse takes two thirds of the estate and the remaining one third is divided between the children.
An advantage of making a will is that testators can themselves decide who exactly gets their property rather than letting the rules for distribution on intestacy apply. In this way Inheritance Tax can be reduced or avoided altogether. Estate planning to avoid Inheritance Tax is an important part of a solicitor’s duty when advising a client who is making a will. A solicitor will also point out the legal obligations of which a testator should be aware. For example, a testator’s spouse can claim one third or one half of the testator’s estate if dissatisfied with the provision made for him or her in the will.
Furthermore, a testator can appoint an executor to take charge of their estate. A testator can ensure that someone who is competent will see to it that his or her wishes are carried out. An executor can be a beneficiary. Frequently, the executor is the main beneficiary. It is only a witness who cannot benefit under a will. In an intestacy there can be a disagreement between the next of kin as to who will take charge of an estate and it can happen that someone who is unsuitable takes charge simply because they were the first to apply.
When someone dies and their property must be distributed the first step is to ascertain whether or not they made a will. Usually there is no difficulty in establishing this as the deceased will have told his next of kin that he has made a will and where it is to be found. However, solicitors often have to write to other solicitors to ascertain if any of them hold a will for the deceased person. Therefore it is important not only that you make a will but you should also let your next of kin know where your will is kept.
-Hugh Joyce