The COVID-19 pandemic has, unsurprisingly, caused a lot of people to stop and think about whether they have a valid, up to date will in place.
Since the “lockdown” restrictions were put in place, we have drafted and helped complete wills for many clients, while adhering to strict health protocols to ensure the safety of all our clients.
Why make a Will?
The most basic reason for making a Will is to ensure that your assets are distributed in accordance with your wishes after you have gone. If you do not make a Will, then the law provides rules which dictate where your assets should go after you have gone. These are known as the “Rules of Intestacy” and dictate as follows: If the deceased is survived by: –
- Spouse but no children – spouse gets entire estate.
- Spouse and children – spouse gets two thirds. One third is divided equally between children.
- Parents (i.e. no spouse or children) – divided equally (or entirely to one parent if only one survives).
- Children, but no spouse – divided equally between children.
- Brothers and Sisters only – shared equally, the children of a deceased brother or sister take the share.
- Nieces and Nephews only – divided equally between those surviving.
- Other relatives – divided equally between nearest equal relationship.
- No relatives – your assets will go to the State.
Requirements for a valid Will:-
- The person making the Will must be 18 or over and of sound mind.
- The Will must be in writing.
- The person making the Will must sign and date the Will in the presence of two witnesses.
- Neither of the two witnesses may benefit from the Will.
- The person making the Will must indicate their name and address and confirm that this is their last Will and that they are revoking any previous Wills made.
- The Will must appoint an Executor (i.e. a person appointed to carry out their wishes after their death).
Common mistakes in making a Will:-
- If you make your Will before you get married the marriage will render the Will null and void (unless the Will specifically states that it is made “in contemplation of marriage”.
- When your Will indicates that all previous Wills have been revoked, this includes any Wills you may have made in a foreign country, which may not have been your intention.
How to determine if a person making a Will is of sound mind:-
- The person must understand that he/she is making a Will.
- The person must know the nature and extent of his/her estate.
- The person must be able to have regard for those who might expect to benefit from his/her estate and decide whether he/she wants to benefit them.
Capacity to make a Will may be proved by a sworn statement from a Doctor or from a Solicitor who attended the deceased at the time the Will was made.
Before you make your Will you need to consider the following:
- Who will act as your Executor to carry out your wishes after you have died?
- Who will benefit under your Will?
- Who will look after any children under 18? You can appoint persons in your will to act as Guardians
- What happens if a beneficiary predeceases you?
- You can also include any directions or wishes you want to include in your Will such as
- burial arrangements.
- you should also leave instructions if there are any unusual gifts in your Will to ensure there is an explanation in the event that your Will is contested or disputed after you pass away.
It is important to ensure when you are making your Will that you are not paying any more inheritance tax than you need to and be absolutely certain that whatever intentions you have in your Will cannot be disputed if, for example the Wills validity is called into question.
It is therefore prudent to either have your Will checked by a Solicitor or preferably to have the Will drafted and completed in the presence of a Solicitor.
At M.M. Halley & Son we have many years of experience in drafting and completing Wills for clients and indeed administering the Estates of those clients after they have passed away.
There are circumstances where a little legal advice is essential in cases, for example, where you own property with someone who is not your spouse, or if you have a dependent who cannot look after themselves, or a former spouse, or children from a former relationship.
There could be a possibility of an inheritance claim in all these cases.
If you would like to discuss the making of a Will, please let us know by calling 051-874073 and asking to speak with Frank Halley.