Don’t take a chance with a ‘DIY will’ that might not be valid
In part one of this series, we looked at how and why wills are regularly challenged in the Irish courts and, given the complexities involved, one could be forgiven for deciding that not to write a will at all would prevent a lot of potential trouble.
Some people, willfully or otherwise, avoid making any decision on how their assets should be distributed until it is too late. Unfortunately, leaving no will behind does not mean litigation can be avoided.
By not making a will you lose the power to decide who inherits your estate and it is legislation which decides who inherits your estate but even then, this does not mean that litigation can be avoided.
“Some people never get round to making a will,” said Mr Vinog Faughnan SC who specialises in will disputes, trust law and administration of estates law. “And some people are very private and don’t want anyone knowing their affairs.”
In 2012, the Probate Office dealt with 3,149 applications for a Grant of Probate where people died intestate.
Where a person has not made a will or the will they have made is found to be invalid by the courts, that person is said to have died ‘intestate’. Where a person dies intestate, their property is distributed to their surviving relatives according to the law of intestacy, laid down in the Succession Act 1965.
This Act lays down strict rules about who can inherit and, crucially, it does not make provision or take into account a person’s wishes unless they have a will.
Without a will, your property could potentially end up going to someone you did not want to inherit your property, while someone you would have liked to benefit such as a non-relative friend who was good to you during your life time will not inherit anything.
Briefly, the rules of intestacy decree that, if you are survived by:
1. A spouse but no children (or grandchildren): Your spouse is entitled to your entire estate
2. A spouse and children: Your spouse gets two-thirds of your entire estate and the remaining one-third is divided in equal share between your children. If one of your children has pre-deceased you leaving children (ie grandchildren), then the share of that child goes to their children.
3. Children, but no spouse: Your entire estate is divided in equal shares among your children (or per stirpes between the children of pre-deceased children as set out above).
4. Civil partner but no children: Your civil partner is entitled to your entire estate.
5. Civil partner and children: Your civil partner gets two-thirds of your estate and the remaining one-third of your estate is divided in equal share between your children.
6. Parents, but no spouse/civil partner and no children: Your estate is divided in equal shares between your parents (or if only one parent survives the estate is left entirely to the one parent).
7. Brothers and sisters only: Your estate is shared equally among them, with the children of a pre-deceased brother or sister taking his/her share equally between them if more than one.
8. Nieces and nephews only: Your estate is divided equally among those surviving.
9. Other relatives only: Your estate is divided equally between the nearest equal relatives.
10. No relatives: Your estate goes to the State.
Dangers of DIY wills
Legally, every person In Ireland is entitled to make their own will but sadly ‘homemade’ wills or ‘DIY’ are often poorly drafted or constructed and are open to challenges which can render them invalid.
As an expert in the area of wills and probate, Vinog Faughnan SC has seen first-hand some of the problems created when a person opts to make their own will without legal advice.
“Everyone is free to make their own will if they so wish but it is always wiser to have a solicitor involved in the process,” he advised.
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 or acknowledged in the presence of two witnesses, both present at the same time and
The witnesses must sign in the presence of the testator, but not necessarily in each other’s presence.
The following are some common reasons why wills made without legal advice are open to challenge:
1.Lack of clarity about who the asset is to go to.
For example, John Burke wrote in his will: “I leave my land at Whiteacre to Patrick.”
It was not clear from this sentence whether John Burke meant his son Patrick Burke, his uncle Patrick Burke or his neighbour Patrick Walsh.
“I leave my land at Whiteacre to Patrick Burke.”
Again it was not clear whether John Burke meant to give the land to his son, uncle or cousin Patrick Burke in Florida. In the eyes of the law, Patrick Burke in Florida would have a legitimate right to say it could have been him mentioned in the will.
“If the court can’t reach a conclusion about who was meant to receive the gift, the gift may be declared void and fail,” warned Mr Faughnan SC. “This frustrates what may have been John Burke’s intention but his intention was unclear in how the will was written.”
2. Confusion over the identification of land
In writing a will without legal advice a farmer may refer to certain portions of land as ‘Johnny’s Field’, the ‘High Field’, the ‘Bull Field’, as is often the case on Irish farms.
However, following the farmer’s death, the family may not agree about which field is which and this leaves the will open to challenge.
In writing a will, the asset must be clearly identified and in the case of land, may need to include reference to folios or refer to marked maps attached to the will so that there can be no doubt about the identity of the land.
3. Mistakes in the sequence of witness signatures.
“The order of signing the will is critical in the drawing up of a valid will,” warned Mr Faughnan SC. “The person who is writing the will must sign it first in the presence of the two witnesses.”
For example, Mrs Jones signed her will in her own house with no one present, then went down the road to her neighbour Mrs Brown and asked her to sign her name as a witness to her signature. Then she left Mrs Brown’s and called to another neighbour, Mrs Daly, to sign it.
“The validity of that will could be challenged and it would fail and be found invalid,” pointed out Mr Faughnan SC. “Mrs Jones should have signed her name or acknowledged her signature in the presence of both witnesses and then both witnesses should have signed their names in her presence.”
4. Witnesses (or spouses of witnesses) cannot be beneficiaries under the will.
Thomas Ryan wrote his will leaving gifts to his mother and brother, then had them sign it as witnesses. However the gifts to his mother and brother failed because witnesses (or spouses of witnesses) cannot be beneficiaries of the will they are witnesses to.
In 2011, the High Court heard the case of the author John O’Donohue, who left behind a homemade will.
While the will was held formally valid in that it was properly executed, the terms of the will were held void for uncertainty by Mr Justice Gilligan (See Case Study).
The will was unclear about how the author’s assets — worth more than €2m — should be divided.
“The Testator (John O’Donohue) has unfortunately provided an illustration of exactly how a person should not make a will,” the judge remarked.
“While there can be little doubt but that the Testator was a man of considerable learning, the fact that he did not benefit from legal advice or assistance is evident from the will he drew up.”
Case Study: Famous author’s mistakes show ‘how not to write a will’
O’Donohue v O’Donohue –  IEHC 511
Poet, author and philosopher John O’Donohue of Connemara, Co Galway, died in January 2008 as a bachelor without children.
He was survived by his mother, Mrs Josephine (Josie) O’Donohue, his brothers, Patrick and Peter O’Donohue and his sister, Mary O’Donohue, as well as two nieces and two nephews.
He left behind a will that read:
“Last will (&) Testament of John O’Donohue made on night of Feb 21st before Australian Tour.
“I leave all my worldly possessions to Josie O’Donohue, my mother, to be divided equally & fairly among my family with special care (&) extra help to be given to Mary O’Donohue, my sister.
“Also gifts of money to be given to Olivia (&) family, & Marian O’Beirn.
“Smaller gifts to Downey, Ethel, Sheila (&) Pat O’Brien, Laurie Johnson, Ellen Wingard, Deirdre O’Donohue.”
Executor of will: Martin Downey (&) Johnny Casey
Signed: John O’Donohue
Witness: Josie O’Donohue
Witness: Pat O’Donohue”
The will, related to the distribution of Mr O’Donohue’s €2m of assets, was made without legal advice and subsequently challenged in court.
Among the issues that were brought up in the court case were that the will, found on investigation to have been written in 2001, did not revoke a previous will written in 1998.
There was confusion about what the limits were in relation to the extent of “family”, which was mentioned twice in the will.
Mr O’Donohue also contradicted himself by saying he wanted his estate divided “equally and fairly” among his family but he also wanted “special care and extra help” to be given to his sister.
Having heard all the facts, Mr Justice Gilligan held that the terms of the will rendered it void for uncertainty.
As a result, Mr O’Donohue’s entire estate fell into intestacy and, according to the Succession Act 1965, everything went to Mr O’Donohue’s mother.
Mr Justice Gilligan said Mr O’Donohue, despite his considerable learning, had illustrated “exactly how a person should not make a will” and that it was evident he had not had legal advice or assistance in drawing up his will.
The judge said Mr O’Donohue had made the “classic error” of having two of the intended beneficiaries act as witnesses to his signature, thereby depriving both from benefiting from the will.
Sourced: Irish Independent
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