Last Will and Testament

IS MAKING A WILL SOMETHING THAT YOU KNOW YOU SHOULD DO BUT HAVE NOT YET DONE – THE REASONS WHY YOU SHOULD MAKE A WILL.

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1. You decide how your assets will be distributed on your death
If you don’t make a will, you are deemed to have died intestate and your estate will be distributed according to the rules set out in the Succession Act, 1965. This means that those who will get your estate might not be whom you want.
2. Children – You chose who will look after your children if you die.
If you have children under 18 years of age, they will need guardians – that is someone who steps into your shoes and parent the children until they are 18 and make decisions about their health, religion, education etc. if both you and the other parent are involved in a catastrophic accident and pass away at the same time..
When you make a will you chose the person for this role.
Also, children cannot hold property until they are 18 years of age. You will need to appoint at least two Trustees to look after your children’s assets until they come of age.
3. Smart tax planning – by leaving certain property to certain people you may be able to maximise reliefs under inheritance tax rules and minimise the tax liability for your beneficiaries.
If you die intestate – it is predetermined who gets what and it may not be the most tax efficient way to distributing an estate.
4. You choose who handles your affairs on death rather than having the law decide
The person you choose will be your executor. If you do not make a will the rules of Court will determine who is eligible to administer your estate.
Also, who can administer your estate will be dictated by Court Rules. Again, this may see a situation arise where someone you would not want will be looking after your affairs after your death.
Peace of mind-the peace of mind that comes from knowing that you are not leaving problems behind for your loved ones when you pass away is priceless. Making the first will is often the hardest.

If you want to discuss making a will contact either our Cahir or Cashel office and we would be delighted to schedule a meeting with one of our solicitors. Just do it.

Last Will and Testament

INHERITANCE RIGHTS OF CO-HABITING COUPLES

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If you are at least 18 years old and of sound mind, you can make a Will. If you later get married or if you enter a civil partnership, that Will is automatically revoked unless the Will was made with that marriage or civil partnership in mind.

However, if you co-habit with a partner (that is, move in to live with a partner) that arrangement has no effect on your pre-existing Will.

Cohabitants and Inheritance Tax:

Even if a cohabiting partner provides for their partner in their Will, the partner will be treated as a stranger for capital acquisition tax ( inheritance tax) purposes in relation to their inheritance. Currently cohabiting partners pay tax at 33% tax on any inheritance over €16,250.00.

In the case of a cohabiting couple where the surviving partner inherits the home, the surviving partner may be liable for inheritance tax, unless the surviving partner qualifies for a dwellinghouse tax exemption.

If your cohabiting partner has not made a will or has not provided for you:

A financially dependent cohabitant may be able to apply to the court for provision to be made for them from the estate of a deceased partner if the relationship ends as a result of death or otherwise. This is known as the redress scheme for cohabiting couples. If you get redress from a court under this scheme, you may be exempt from paying capital acquisition tax. In order to apply for redress, you must be a qualified cohabitant, that is you must have been:

• Living with the person for at least five years in an intimate and committed relationship; or
• Living with the person for two years in an intimate and committed relationship if you have had a dependent child with your partner.

If you do qualify to apply under the redress scheme you still may not be entitled to any provision or share of your partner’s estate if they die. Much will depend on the financial relationship between partners, each partner’s financial circumstances and whether a partner was still married or had children and the size of the estate.

Making a Will:

Making a will can ensure that proper arrangements are made for partners and the dependents and that your property is distributed according to your wishes, subject to certain rights of spouses/civil partners and children. Tax advice can help reduce or minimise the amount of tax your beneficiary must pay.

Donal T Ryan solicitors will help you to prepare a Will that reflects your wishes. Contact us at 062 61288 or 052 7441244

A Will is Revoked by Marriage, or is it?

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A Will is Revoked by Marriage, or is it?

The usual position is that a Will is revoked by marriage as the intention of the legislature is that the wife and any children would be the beneficiaries in the ordinary way. We examine the recent decision of Mr. Justice Allen delivered in the High Court in the matter of the Estate of John McPartlan, deceased.

However, a last Will and Testament can be made in contemplation of marriage and the burden of proof is on the person asserting this that the last Will and Testament was made in contemplation of same. The legislation provides that the Will does not have to state on the face of the document that it is made in contemplation of marriage but rather this can be inferred from contemporaneous notes and correspondence but there must be contemplation of marriage to a particular person.

In this case the late Mr. McPartlan, who died on 12th August 2019, was survived by his wife Carol and seven siblings and they had married on 8th August 2019, just days before his death.

The background to the matter relates to a Will made on 18th June 2019 where the late John McPartlan named his sister and brother as his Executors. He left his house at Artane, Co. Dublin, to his seven siblings in equal shares and left the residue of his estate to his wife. The value of the residue is a little more than the value of the house.

The Executors made an application to High Court to prove the Will and the issue the High Court was trying to determine was whether the deceased’s Will was revoked by his subsequent marriage in which case his spouse, Ms. Graham, would be entitled to the entire estate on intestacy.

The parties were in a long-term relationship from 1996 but did not live together because they were each caring for their mothers.

The late John McPartlan and Ms. Graham became engaged in Jersey in July 2011 and there appears to be no discussion for a period of time thereafter in relation to setting a date for the wedding. A date was never set but when the late Mr. McPartlan received a terminal diagnosis with a short prognosis, he indicated that he wished to get married and this took place. The late Mr. McPartlan had written to his solicitor indicating that he hoped and intended to be married next April 2021 and setting out that he was receiving treatment for cancer and he wanted to update his Will. But he did say that Carol’s house should stay in her family’s possession and his property to his family. He also purchased a wedding ring on the same date as the letter to his solicitor, i.e. 13th May 2019. On 24th May he met with his solicitor and a Will was sent out to him and he executed it on 18th June 2019. Ms. Graham said that the deceased, Mr. McPartlan, wished to marry her and he told her afterwards “everything is yours now, I told you I would look after you”.

The High Court reviewed decisions from Ireland, England, Victoria and New Zealand and ultimately it was held that the Will was made in contemplation of marriage and therefore it was not revoked by the subsequent marriage even though it was not expressly or on its face made in contemplation of marriage but that is not a requirement of Irish law. The High Court found that it is quite clear based on the evidence surrounding the circumstances of the making of the Will, that the Will was made in contemplation of marriage and then by virtue of Section 85(1) Succession Act, 1965, it was not revoked by the subsequent marriage. Therefore, the Will was admitted to Probate and the house went to his siblings.

If you have any questions on Probate Litigation, contact Anne Marie O’Donnell Solicitor in the Cashel office at 062 61288

Proper Provision | Family Law Case

Can anyone make a valid will?

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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.

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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.