All you Need to Know About Making a Will

How can I make a Will Valid?

In order for a Will to be valid it must comply with the rules as set out in the Succession Act 1965:

• The testator (the person making the Will) must be over the age of 18. There is an exception to this rule where the testator has been married before reaching the age of 18.
• The testator must be of sound disposing mind. They must be able to show that they understand what they are doing i.e. making a Will, know the nature and extent of their property and be able to recall the people that may be expected to benefit from their estate.
• The testator must be acting of their own free will.

Why do I need a Solicitor to Make the Will?

Once a Solicitor is satisfied with the above they will proceed to take instructions from the testator with regard to drafting the Will. To ensure that a Will is Valid and accepted by the Probate Office the following criteria must be met:

• The Will must be in writing
• The Will must be signed at the end by the testator
• The signature of the testator must be witnessed. There must be two witnesses and both of these witnesses must be present when the Testator signs the Will
• Both witnesses must sign the Will in the presence of the testator
• The witnesses must not be included as beneficiaries in the Will. If an intended beneficiary signs the Will then any gift to them will not be effective i.e. they will inherit nothing from the estate.

Could my Will ever be Revoked?

It is important to note that a Will is considered to be revoked by a subsequent marriage but it is not considered to be revoked in the case of Divorce.  A Will does not become Legally Binding until the date of death of the testator and up until such date can be amended at any time.

If there is a Will in another jurisdiction dealing with foreign property then you must be careful not to revoke this Foreign Will. When you make a Will, as a general rule, all previous Wills are automatically revoked, unless otherwise stated on the face of the Will.

What Information do I need to add to My Will?

The Will must contain the full name and address of the person making the Will.

Executors

One of the first things to consider in advance of drafting a Will is who you want to name as Executor/Executrix. An Executor is the person appointed to carry out the terms of the Will and oversee the administration of the estate.

It is best to nominate at least two Executors when drafting a Will. This will ensure that if one of the Executors is unable or unwilling to act that there is still an Executor in place. You can of course nominate as many Executors as you wish (keeping in mind that two many cooks spoil the broth).

Legal Guardians – Children Under 18

If you have children under the age of 18 at the time of drafting the Will then it is important to give consideration as to who you will nominate to act as the legal guardian of your children. This is something that should be discussed with the nominated person or persons in advance of drafting the Will. In the event that all or any of your children remain under the age of 18 at the date of your death then the legal guardian, as nominated in the Will, must take responsibility for these children. It is good practice to set out what you would like to happen in these circumstances i.e. where will the children reside, with the legal guardians have access to the inheritance of the minor children before they reach the age of majority and if so in what circumstances will they be granted access.

Your solicitor will go over all of this in detail to make sure that your children are properly looked after in the event of your death. Once the executors and guardians have been dealt with it is time to look at the beneficiaries i.e. who do you want to leave your estate to.

Spouses – Legal Right Share

If you are married then your spouse is entitled to a Legal Right Share in your estate, this is set out in the Succession Act 1965:

• If the Testator dies leaving a spouse and no children then the spouse is entitled to one half of the estate.
• If the Testator dies leaving a spouse and children then the spouse is entitled to one third of the estate.

It is worth pointing out that the above only applies where there is a valid Will in place. If the testator dies intestate (without having made a Will) then the following applies:

• Where the Testator dies leaving a spouse and no children then the spouse is entitled to the entire estate.
• Where the Testator dies leaving a spouse and children then the spouse is entitled to two thirds of the estate.

If a testator were to make a Will leaving nothing to their spouse then this spouse will be able to contest the Will and seek their legal right share of the estate.

What rights do Children Have?

Unlike a spouse, children have now a legal right to a share in the estate of their parents. Should a testator decide not to provide for their children upon their death then it is open to the children to contest the Will under Section 117 of the Succession Act. In order to succeed in this application they must be able to show that the parent failed in their moral duty to provide for the child or children during their lifetime. Once a spouse is properly provided for in accordance with their legal right share, a testator is free to do as they wish with the rest of their estate.

Can I add a Gift to my Will? – Gift over Clause

Another matter that requires some consideration in advance of drafting your Will is whether or not you want to include a “gift over clause”. A gift over clause is put in place to cover the situation where one of the beneficiaries named in your Will predeceases you.

It is particularly important where one of your children predeceases you. This is because under the Rules as set out in the Succession Act, if a child predeceases you they will still inherit from your estate. The Succession Act in essence states that the child did not in fact predecease the testator and therefore is still entitled to inherit.

This means that if there is no gift over clause included in the Will then the inheritance of the predeceased child will go through their estate and this will usually mean that their spouse will inherit. In order to avoid this situation many testator will put in a clause stating that in the event of a child predeceasing them then the share of such child will pass to their children (grandchildren of the testator) and if they have no children the testator can decide who should benefit.

What Safety Nets are in Place for my Will? – Residue Clause

It is always vital that your solicitor should include a “Residue Clause”. This clause is a catch all or safety net. If there are any assets in your estate that have not been dealt with or a beneficiary renounces or predeceases you or if a gift should lapse then the Residue Clause will set out what should happen/who should benefit. Without the appropriate Residue Clause your estate will be considered to be partially intestate.

Why Make A Will?

First and foremost, making a Will gives you control over your estate. You can decide who should benefit and who should not. As set out previously, this is particularly beneficial in circumstances where a child has predeceased you.

Making a Will gives you an opportunity to properly provide for your loved ones. This is especially important where you have a relative/children with special needs or children under the age of 18. Ensuring that Legal Guardians have been appointed and that your children will be properly provided for in the event of your death can provide peace of mind.

Making a Will allows you to gift specific items (specific bequests). This means that you can gift items of sentimental meaning and value to your loved ones e.g. wedding rings and other jewellery.

• Administering an estate with the benefit of a valid Will is less complicated, more cost effective and faster.
• Avoid arguments within your family. If there is no valid Will in place it is quite often the case that family arguments will ensue.
• It is more tax efficient.

Why Use A Solicitor to Draft a Will?

Drafting a Will can be more complicated than many people realise and it is always a good idea to seek legal advice to ensure that a Will is fully compliant with the Succession Act 1965.