What is a Will?

A will is a written, witnessed, document setting out in writing, the deceased person’s wishes as to how they want their possessions (called their Estate) disposed of. When a person dies having made a Will, they are said to have died Testate.

How do I make a valid Will?

• In order for a will to be valid the following legal requirements must be met:
• The person making the will (called the Testator) must be over the age of 18
• The Will must be in writing
• The Testator must be capable of doing so (i.e. not suffering from a mental incapacity which would render them unable to understand the implications of their actions)
• The Testator must sign or mark the will in the presence of two witnesses who must also sign the will in the Testators presence at the time the Testator signs the will.
• The witnesses cannot receive any gifts under the will.

Can I change my Will?

A will can be changed at any time by making a new will, amending an existing will or by creating a separate document called a codicil. Again a codicil should be in writing setting out the changes that should be made and should be signed by the Testator and two witnesses.

How do I revoke my Will?

A will is automatically revoked where:

• A new will is made revoking the previous one.
• The testator marries, remarries (it should be noted that a divorce does not revoke a will)
• If the Testator, or someone in their presence, on their instructions, burns, tears or destroys the will with the intention of revoking it.

However where a will is revoked and a new will is not made then should the person die without making another will they will be deemed to have died intestate.

What is a Legal Right Share?

Where a Testator (a person who has made a Will) is married, there is a legal obligation on him/her to leave a portion of their Estate to their spouse. If a Testator dies leaving a surviving spouse and no children, that surviving spouse is entitled to half of the Testator’s estate. If a Testator dies leaving a surviving spouse and children, that surviving spouse is entitled to one third of the Testator’s estate. It should be noted however that a surviving spouse can renounce their legal right share or can be deemed “unworthy to succeed”.

There is a duty on the Executor to notify the surviving spouse in writing of their Legal Right Share within a specific time. The Executor is the person nominated by the Testator under the Will to be responsible for the administration of their estate.

It should be noted that children have no automatic entitlement to a share of their parent’s Estate although they can make a court application for a share on the basis that the Testator has failed in their moral duty to provide for them.

What happens if I die without having made a Will?

Where a person who has not made a will during their lifetime dies, they are said to have died Intestate. Their Estate will then be disposed of in accordance with law by an Administrator. An Administrator is the person who extracts the grant of representation in an intestate situation or where a person dies Testate and there is no Executor for whatever reason.

Where a person who is married and has children dies without making a Will, two thirds of their Estate will go to their spouse with the remaining one third going to their children. Where the deceased has no children, his/her surviving spouse is entitled to all of their Estate. Where a person who is unmarried dies Intestate then their Estate goes to their next of kin (as set out in law).

For further information please contact:

Hugh Joyce (Solicitor)
t: 068 50918
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Mary Walsh (Solicitor)
t: 068 50928
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