50 Things You Should Know About Making a Will in Ireland

Here are 50 things you should know about making a will: 

Many good reasons to make a will

1. The requirements for a valid will are set out in section 77 of the Succession Act, 1965. 

2. To make a will you must be of sound disposing mind and at least 18 (or if younger, married) 

3. If you don’t make a will an intestacy situation arises; this means that your property will be distributed in accordance with the Rules of the Superior Courts and the Succession Act, 1965 

4. Making a will leads to a cheaper and quicker administration of the estate through a Grant of Probate 

5. If you leave a benefit in your will to your child who predeceases you the benefit will go to his estate, not to his children (section 98 of the Succession Act, 1965) 

6. You can prevent this happening by making provision in your will that the benefit will go to, for example, your child’s children 

7. You can engage in tax planning/minimisation of capital acquisitions tax by making a will 

8. Your choice of executor is critical-(s)he handles your affairs and extracts the grant of administration 

9. You can make as many wills as you want 

10. The only will that counts though is the last one before you pass away

11. Your will must be in writing-it could be carved in stone 

12. You must sign it at the end of the will and your signature must be witnessed by 2 people 

13. Your witnesses cannot benefit from your will so if you intend leaving either one (or both) something get a different witness(es) 

14. Your will must contain your name and address 

15. Your will must be dated 

16. Your will should revoke all previous wills (if any) 

17. A list of legacies refers to your money or goods 

18. A list of devises in your will is a list of your real property

19. Your will is not revoked by divorce 

20. Your will is revoked by marriage 

21. You cannot appoint alternative executors because your will will fail for uncertainty eg “I appoint Mary or Sean to be my executor” 

22. If you have children under the age of 18 you should appoint trustees and/or guardians

23. The spouse of any of your witnesses cannot benefit from your will 

24. If an intended beneficiary predeceases you and there is no clause in your will dealing with the residuary of your estate that benefit will be distributed as if you died intestate 

25. Your child can bring a legal action against your estate under section 117 of the Succession Act, 1965 if you fail in your “moral duty” towards him/her 

26. Your spouse has a legal right to a share of your estate thanks to section 111 of the Succession Act, 1965 

27. If you make a will your spouse is entitled to 1/3 of your estate if you leave children and ½ of your estate if you have no children 

28. If you don’t make a will your spouse is entitled to 2/3rds of your estate if there are children and the whole shooting match if there is no children 

29. Children referred to at 26, 27, 28 above includes martial and non marital children and adopted children 

30. Your spouse can cease to be a spouse in 4 ways: 

• By renunciation (section 113, Succession Act, 1965)
• By separation (Judicial Separation and Family Law Reform Act, 1989 and Family Law act, 1995)
• By divorce (Family Law(Divorce) Act, 1996)
• By unworthiness to succeed (Succession act, section 120) 

31. If your will is valid, there is a presumption of testamentary capacity 

32. The test for testamentary capacity was set out in an 1870 case: Banks v Goodfellow 

33. There are 3 aspects to testamentary capacity: a) you must understand you are making a will to dispose of your assets, 2) you must know the extent of your estate, 3) you must be able to give consideration to those who might expect to benefit from your will 

34. Certain situations will give rise to a presumption of undue influence; generally where the relationship of trust and confidence existed eg doctor/patient 

35. Your children are not entitled to any specific share of your estate, unlike spouses (see 26 above) 

36. If you don’t make a will though your children (strictly “issue”) are entitled to 1/3 

37. Your children can bring a legal action against your estate under section 117 of the Succession Act, 1965 for your failure to discharge your moral duty to them 

38. The time limit for bringing such an action is 6 monts; and it is a strict one 

39. You can create a trust in your will 

40. A trust is an equitable obligation binding someone (a trustee) to deal with your property for the benefit of beneficiaries whose identity may not be known yet 

41. Your trustees will be the legal owners of your trust property but they must carry out the terms of the trust which you will decide 

42. If your trust property is “real property” the trust must be evidenced in writing 

43. A trust is not a legal entity so cannot be bound by a legal contract 

44. The Land and Conveyancing Law Reform Act, 2009 has made huge changes in trust law in Ireland 

45. Your estate is administered by your personal representatives-an “executor” in a testate situation and an “administrator” in an intestate situation 

46. Your executor’s job is to extract a grant of probate to “prove” the will and deal with your estate 

47. Your executor does not have to act and may renounce; but once (s)he takes on the role (s)he can’t renounce later 

48. Your executor’s powers come from the will itself and the Succession Act, 1965 

49. Capital acquisitions tax is the tax payable by beneficiaries of your will 

50. The amount to be paid can be reduced/minimized because there is a wide range of reliefs and exemptions, provided you make a will. 

You can learn more about making a will or setting up a trust in your will by clicking on the links.

Why Trusts are Becoming Sexy in Ireland

What my mother told me recently stunned me.

We were talking about the property price crash, the huge and unsustainable debt burden faced by ordinary hard working people, negative equity, and so on.

She told me that when she and my father had their first house built in the late 50’s/early 60’s they paid the builder by cheque. 

He built the house; they paid him.

I envied the simplicity of this arrangement…not to mention the avoidance of debt.

My parents were not wealthy; they were just hard working small business owners. They saved and scrimped and worked until they had the price of the house.

It was a world away from the last 10-15 years in Ireland; years of easy money and borrowing not just for the house but for furniture, stamp duty, legal fees and foreign holidays too.

I have come across quite a few people recently of my mother’s generation with a big problem: they may have escaped, not entirely unscathed, the financial crisis/property meltdown of the last few years.

And because they are “of an age”, they own their homes debt free. But they are worried about passing it on to a son or daughter.

Because the son or daughter is facing serious problems with debt. 

And is considering bankruptcy or entering into a personal insolvency arrangement with their creditors.

The parent is worried sick that the asset which they wish to pass on to their loved one will be at the mercy of the son’s/daughter’s creditors. 

Or official assignee in bankruptcy.

So they are being advised to put the property in trust for the child.

This is good advice…provided it is done properly and a proper will trust is set up.

I am not talking about some nutty arrangement describing itself as a trust like the “Kilkenny Trust”. 

Setting up an effective trust-one which will withstand attack from creditors-requires professional legal advice.

And the tax implications of trusts and when assets vest in beneficiaries necessitate sound taxation advice.

You can learn more about the legal aspects of will trusts here.