During these unusual and unprecedented times, many people, especially our front-line workers, will be considering making a Will or updating their existing one. There has already been a surge in the number of people doing so.
It is advised that every person makes a Will as it ensures that your assets will be distributed according to your wishes and avoids the event of intestacy (dying without a valid Will), where this may not happen.
Before making a Will, it is helpful to make a list of all potential beneficiaries and all assets that you own to prevent accidentally omitting any person or asset from your Will. It is also advisable to choose two executors (people who will administer the estate) and to have discussed this intention with them prior to writing your Will.
Under the current legislation, The Succession Act 1965, there are strict requirements that must be adhered to in order to create a valid Will; which are as follows:
- The Will must be in writing;
- You must be over 18 (if you are or have been married you can be under 18);
- You must be of sound mind;
- You must sign or mark the will or acknowledge the signature or mark in the presence of two witnesses. NB: You cannot choose witnesses who are going to benefit in any way under your Will or who are married to or are civil partners of any beneficiary
- Your two witnesses must sign the Will in your presence;
- Your two witnesses must be present with you at the same time for their attestation to be valid;
- Your witnesses must see you sign the Will, but they do not have to see or read its contents; and
- Your signature must be at the end of the Will.
Important Information Regarding Wills
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If you have children, your spouse/civil partner is entitled to one third of the estate.
If you do not have children, your spouse/civil partner is entitled to one half of the estate.
Children are not automatically entitled to be included in the Will. If they are not included, they have the opportunity to appeal the decision to the High Court prior to a Grant of Probate being extracted. The Court will then consider the applications based on whether the deceased parent has failed in their moral duty to make proper provision for the child in accordance with their means.
If you own joint property with your spouse/civil partner, this property passes automatically by survivorship and passes outside of the Will.
If a person dies intestate (without a Will), the following rules apply:
1 The surviving spouse (or civil partner) is entitled to 100% of the estate if there are no children;
2 If there are children, the surviving spouse is entitled to two thirds of the estate
with the children being entitled to the remaining one third;
3 If there is no surviving spouse, the estate will be distributed equally between children; and
4 If there is no surviving spouse or children, the parents of the deceased will be entitled to the estate.
Adhering to Proper Distancing Practices During COVID-19
There are a number of necessary requirements involved in the making of a Will that are simple under normal circumstances but pose some difficulty to carry out during the pandemic. They are as follows:
- Instructions must be obtained to ensure your intentions are properly executed;
- You must sign the Will; and
- The will must also be signed by two witnesses, both present at the same time, while in your presence.
These requirements are in place to prevent the possibility of fraud and therefore the legislation that supports them remains unchanged during the pandemic, despite the obvious difficulties in adhering to them. However, these requirements are not impossible to perform while adhering to social distancing rules simultaneously. The following are some examples of how this can be done:
1 Instructions of the client, which would normally take place during a face to face consultation, can be taken by email and phone, with the Will be drawn up thereafter;
2 If you were to sign your Will in our office, strict distancing practices would be used, with everybody using their own pen; and
3 If you wish for your Will to be witnessed at home, your two chosen witnesses can witness your signature through the window of your home. Alternatively, you can sign the Will on the dashboard of your car, which can be witnessed by the two witnesses through the car window.
Health remains paramount during this difficult time and Crowley Millar strive to provide high-quality legal services within official HSE health and safety guidelines.
For further advice, please do not hesitate to contact our office by email at [email protected].
Written by – Darragh Regan, Trainee
Dated 13 May 2020
Crowley Millar Solicitors LLP Disclaimer: This is a general information note and is intended for information only. It does not constitute legal advice and should not be regarded as a substitute for legal or other professional advices. Such advice should always be taken before acting on any of the matters referenced in this information note.