Proper Provision | Family Law Case

Can anyone make a valid will?

Under Irish law in order to make a valid Will a person must:

a) Be eighteen years of age or be or have been married.
b) Be of sound disposing mind.

Paragraph a) is reasonably clear. Paragraph b) is more interesting.

Over the years the Courts have developed a test for the concept of sound disposing mind and it has three parts:

i) A person must understand that he or she is making a Will, i.e. that it is a document that will dispose of their assets on their death.
ii) The person must be capable of knowing the nature and extent of their estate, i.e. their property. This includes land, houses, shares, bank accounts cash etc.
iii) The person must be able to consider persons who might be expected to benefit from their estate and to decide whether or not to benefit them.

It should be noted that despite the well-worn phrase “being of sound mind and body” there is no requirement regarding physical health when it comes to making a Will.

It should also be noted that the law recognises that a person may have a “lucid interval”. For example a person may have a mental condition affecting their capacity some or even most of the time. However if the condition is such that at times capacity returns, a Will made during one of these periods would be valid.

When a solicitor is making a Will for an elderly or infirm person it would be quite normal to ask the person’s medical practitioner to meet with the person first and give a report as to their mental state. Not having such a report does not invalidate a Will but having such a report is a good way to avoid potential disputes.

Once a person executes a Will in accordance with the legal formalities regarding witnesses etc. set out in the Succession Act it is presumed by law that he or she had capacity. It is therefore up to anyone challenging the Will to offer evidence in Court and prove that the person did not have capacity.

If you have any questions on the above, do not hesitate to contact our solicitors at 062 61288 or 052 7441244

Will and Testament

New Year Resolutions: Making & Reviewing your Will and considering an Enduring Power of Attorney.

3 reasons why making and reviewing your Will should be top of your to-do list: 

  1. A Will ensures that your wishes are carried out after your death.

If you die without making a Will your estate will be distributed in accordance with the rules of intestacy- this means that the people that you want to leave your assets to after your death may not actually receive them.

  1. It prevents avoidable strain and financial stress on your loved ones.

Having a Will ensures that the people you want to look after are taken care of and enables your loved ones to mourn your loss without the added worry of how your estate will be distributed.

  1. There may be an opportunity for valuable tax planning.

An experienced solicitor will advise you in relation to the various tax reliefs that may apply to your assets and beneficiaries to ensure that your estate is distributed in the most tax efficient manner possible.

Your personal and financial circumstances will evolve with time. It is important to keep your Will under review and to consider updating it to reflect changes in your circumstances and to avail of up to date tax advice.

How much does it cost to make a Will?

Making a Will is usually a quick and inexpensive process. The reward is peace of mind!

Have you considered an Enduring Power of Attorney?

An Enduring Power of Attorney (EPA) is a legal document which allows you to choose a specific individual (usually a close family member) to look after your personal and financial affairs in the event that for any reason you lose your mental capacity in the future. An EPA can be put in place at any time provided that you have full mental capacity. An EPA will only come into effect if you lose your mental capacity to make decisions. Because an EPA involves the transfer of considerable power to your attorney there are a number of legal safeguards to protect you.

We appreciate that you will have lots of questions. Feel free to phone Donal in Cashel (062 61288) or Máire in Cahir (052 744 12 44) for a confidential discussion.