Nature of Will
A Will is a document made by a person directing to whom his property and assets shall pass upon death. Any document which deals with the transmission of property, to take effect on death, is a Will, even if it is not labelled as such. A document signed as a Will must be intended as such. If a person is tricked into signing a document believing, for example, that it is something else, is not a valid Will.
The rules regarding the validity of Wills are strict. Wills need not be formal either in format or language. However, the requirements of the Succession Act must be followed. If these formalities are not followed, the Will is invalid. A will must be in writing, signed by the person making it or some person instructed by him. The signature must be made or acknowledged in the presence of two or more witnesses who are present at the same time, who must also sign the Will.
Wills may be handwritten or typed. They should be written in some permanent form of durable medium (such as paper). E-commerce legislation does not yet allow a will in electronic format. A Will in handwriting alone (but not signed and witnessed) is not valid under Irish law. Some jurisdictions allow for such Wills. A Will may be valid under the law of another country and recognised in Ireland, provided the person making it has one of a defined number of connections with that country.
Signature of Will
The signature by the maker of the Will (the testator) and the witnesses must be at the end of the written Will. It must be obvious that it is intended to give effect to the earlier writing. Although there is a degree of flexibility in relation to the requirement, effect will not be given to writing appearing after the signature. Each witness must sign his or her name. A gift to a witness or his spouse is void.
It is critical that the witnesses are present together with the testator and that they both see the Will being signed or see the testator acknowledging his signature. If they sign successively or separately the Will is invalid. The witnesses need not know the contents of the Will. Indeed, they need not necessarily know that the document is, in fact, a Will.
The Will should include all of the relevant written directions regarding the deceased’s property. It is possible to incorporate other documents by reference. The document referred to, must be in existence and be clearly identified. This is risky and highly inadvisable. It is preferable that the full directions are contained in the will.
Capacity to make a Will
In order to make a Will, a person must be over the age of 18 years. A married testator who is under 18 may make a Will. It is now not possible to marry under 18 without special permission of Court. The person who makes the will must be of sound mind. This requirement reflects the general legal principle, that a person who is not of sound mind, can make significant legal acts such as property transfers.
If a person has been certified as being of unsound and is, for example, a ward of Court, any purported Will made by him is invalid. A person may be found to be of unsound mind or to have been of unsound mind, notwithstanding that he has not been formally made a ward of Court or certified under mental health legislation. It is possible to prove that a person made a will during a period of his “lucidity”, notwithstanding that he may not, otherwise, have been of sound mind.
The onus of proof is on a person who challenges a Will on the basis that a person was of unsound mind. Where a Will is being proved (see below) the Probate Office may require proof of sound mind, if it appears that the person may have suffered from mental incapacity at the time of the Will.
It is possible for persons who are “interested” in the matter (e.g. persons who would benefit from another Will or under the intestacy rules) to challenge a Will after the testator’s death, on the basis that he was not of sound mind. This may involve either challenging the Will being admitted for probate (see below) or seeking to set aside a Will, that has been admitted to Probate. Such a challenge is made in the High Court.
Duress, Fraud and Undue Influence
As with other legal documents, a Will may be challenged and invalidated on the basis of fraud, duress or undue influence. Fraud involves deliberate action by another, in wrongfully inducing the making of the Will. Duress involves actual threat or coercion. The principle of undue influence is broadly similar to that which applies in relation to contracts. The law on undue influence in Ireland is more developed than in other jurisdictions.
In the case of some relationships between a person exerting influence and a person making a Will, (e.g. solicitor and client, doctor and patient, priest and penitent), there may be a presumption of undue influence. In other cases, it may be possible to show that the particular relationship between the parties, is such that they raise a presumption of undue influence. This may apply, for example, where a vulnerable elderly person depends on another.
Where either a presumption of undue influence exists or the circumstances show that undue influence may be present, there is an onus on the person in the position of influence to show that any gift or benefit made in his favour, is the product of the exercise of the testator’s free will.
Wills may also be challenged on the basis of spouse or civil partner’s legal right share. In addition, children and certain persons in the same position may be able to challenge the apportionment of assets made by the will, on the basis that the deceased has failed in his moral duty to made proper provisions. See the separate chapter on these topics.
Amendments of Wills
Any alterations, changes or amendment to a Will, which are made after the Will is signed, have no effect unless the amendments are themselves executed in the same manner as a Will. An alteration is presumed to be made after the will is signed.
Therefore, a person making a Will and the witnesses should sign opposite or near any handwritten alterations in a printed document. This rule does not apply to alterations made before the Will is signed, but is very difficult to prove that this is in fact case.
A Will may be changed by amendment. An amendment to a Will is called a “codicil”. The codicil must be signed and executed the same way as a Will. The Will is interpreted as amended by the codicil.
A will can be revoked by another Will. This is the most common method of a revocation. The latter will may be inconsistent with the earlier will, or more commonly, make revoke all prior wills. Generally, the first line of a well-drafted. A will may expressly or impliedly revokes former wills. An express revocation is desirable
A Will is revoked by subsequent marriage, except a marriage made in contemplation of which the Will is made. This requires that the Will is made because of, or in the context of, the marriage.
A will can be revoked by a person signing another document in the same manner as a will, declaring an intention to revoke the earlier will. The document which revokes an earlier Will, must itself be signed in the presence of two witnesses.
A will may be revoked by being burnt, torn or destroyed by the person who made it , or by someone in his presence and by his direction with the intention of revoking it.
Lost or Unintentionally Destroyed
Difficulties can arise in determining whether a Will has been destroyed with the intention of revoking it. The destruction must be undertaken by the testator or someone in his presence and at his direction.
If a Will cannot be traced after death, the circumstances may give rise to an inference or presumption that it has been destroyed. However, the loss or destruction of a Will without an intention to revoke it, does not by itself, invalidate the Will.
The Will may still be proved by so called “secondary” evidence. A photograph or a draft may be proved, provided that a satisfactory explanation can be given to rebut the presumption that the deceased revoked it by destroying it, with the intention of revoking.
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