Probate – Making A Will

We often get asked if you need a will. It is important to make a will because if you do not, the law of intestacy decides what happens to your assets. A will is the opportunity to sure that your wishes after your death are implemented, and your estate is distributed to the people you would like it to go to. If you are married, have assets and or children you should make a will. It gives guidance for your family to deal with your assets after your death.

The cost of making a will in Ireland can vary from €50 to €150.  A more complicated will which deals with trusts, property abroad, and requires advice on capital gains tax and inheritance tax will cost more than a simple will. Our charges include the cost of making and safely storing the will on your behalf. Give us a call to arrange an appointment to call in, and we will go through the will-making process with you. We can give you a cost estimate for making a will when you phone for an appointment.

Most clients will complete their will in a single appointment which will take less than an hour.

A homemade will is valid if it satisfies the requirements of the Succession Act 1965. If the will is not executed properly in accordance with the requirements of the Succession Act it is void and will not be effective. Examples of where a homemade will is not effective are where the will is not signed or witnesses properly.  A witness to a will cannot be a beneficiary in the will or it will invalidate the bequest. There are a number of circumstances where it is important to take advice to ensure that the will is valid.

In our experience many DIY, home-made or online will’s contain errors which require a court application to rectify after your death adding additional cost and stress. Many DIY, online, or home-made wills do not comply with the provisions of the Succession Act and as a result are ineffective. It is best to get our professional help to make a valid will.

An example of the dangers in drafting a will based on information on the internet was reported in the recent UK case of Henrietta Ingram & Anor v Simon Timothy Abraham & Anor reported in the Law Society Gazette August 2023.

This UK case demonstrates the danger of drafting a homemade will and the consequences of not taking proper legal advice. His Honour Judge Berkley, sitting as a judge of the High Court, found Joanne Abraham’s later will did not achieve what she wanted, which was ‘to secure the benefit of her estate for her children, apportioned to reflect their life-time gifts’. Abraham died in February 2021 of terminal bone cancer, having been diagnosed with breast cancer in 2000. She was 58 and left two adult children, Henrietta and Tom, and their younger sibling Simon. Abraham, referred to as Jo in the 85-page judgment, made a will in 2008 which she altered in 2019 making Simon the executor. The 2019 will was drafted using a template from the internet.

The judgment said Joanne’s intentions were that her children would end up as equals overall, taking into account any lifetime gifts, and she was ‘trusting Simon to look after Tom and Henrietta rather than finalising things in the will’.
Finding that the 2008 will, and not the 2019 version, should be admitted to probate, the judge said Joanne ‘thought that Simon would inherit her estate to distribute it as per her orally and repeatedly expressed wishes to divide it fairly’ between her children.
He added: ‘A lawyer would recognise her intentions as for the creation of a discretionary trust in favour of Tom and Henrietta, with Simon as trustee to act in accordance with her stated intentions. ‘The formalities would have fallen rather short, but there were no lawyers involved, which is part of the problem. The 2019 will does not, of course, achieve that intention because Simon, as executor, is trustee for himself and Hilary [Simon’s wife] alone.
‘I find that what Jo wanted to achieve was to secure the benefit of her estate for her children, apportioned to reflect their life-time gifts, and that that benefit and apportionment was to be entrusted to Simon to implement. Clearly, the 2019 will did not achieve that. ‘I have little hesitation in finding that Simon and Hilary have failed to discharge the burden of proof to establish that Jo when she signed the 2019 will understood: (a) what was in the 2019 will when she signed it; and (b) (more emphatically) what its effect would be.’

Sometimes the opportunity to chat face to face, brings out complications or particular circumstances, that would not be obvious in making a home-made or online will.

We can also provide advice on taxation and inheritance tax thresholds which are a consideration when deciding who to leave your assets to.

In our experience many DIY, home-made or online wills contain errors which require a court application to rectify after your death adding additional cost and stress. Many DIY, online or home-made wills do not comply with the provisions of the Succession Act and as a result are ineffective. It is best to get our professional help to make a valid will.

An executor of a will is the person nominated in your will to ensure your wishes are carried out. Your executor can be a beneficiary under the will.

If you die without making a will you are described as “intestate”.  There are statutory rules as to how your estate is then distributed between your closest living relatives.

At Lanigan Clarke we have many years of experience dealing with the Probate Office and extracting Grants of Probate. We are also members of Solicitors for the Elderly Ireland which is an independent national association of solicitors and barristers concerned with improving the availability and delivery of specialist legal advice to older and vulnerable people, their families and carers.

There are certain cases where a spouse or a child can claim part of the estate under the Succession Act. For example a spouse is entitled to claim the family home notwithstanding the provisions of the will.

Subject to these exceptions wills in Ireland can only be challenged on the basis of undue influence on the person making the will or the testator was of unsound mind at the time of making a will. View more details here.

The main grounds to challenge or contest a will in Ireland are:

• The will is invalid as it does not comply with the statutory requirements to make a valid will.
• Lack of testamentary capacity.
• The testator was under “undue influence” from another party at the time of making the will and the will does not reflect their own wishes.
• The will does not provide for a spouse or children in accordance with the Succession Act 1965
• The Claimant is a Cohabitant of the deceased.

View more information on contesting a will in Ireland.

It is often assumed that the costs of  a challenge to a will are paid from the estate This is not always the case as this recent  judgement of Justice Nuala Butler shows in the case of O’Connell v. O’Connell and Anor. [2023] IEHC 215 where she set out the principles applicable to this discretionary relief.

On the issue of costs, the court held that the nephew was not entitled to his costs from the estate for several reasons, including inter alia that the nephew ran the case in the knowledge that the legal fees would have a negative effect on the amount of the estate and the other party had made a reasonable “without prejudice” offer.

View more details in our article for Who pays the legal costs in a challenge to a will?

If you are altering or changing your will this is a helpful guide to when you need (or need not) do. View the full article in our news section or visit here.