LEGAL EAGLE: Making a will

This week, solicitor Ursula Cadden looks at the topic of making a will, which everyone is advised to do regardless of your personal wealth or lack thereof. It is particularly important if you have children in terms of nominating your preferred guardians.

Appointment of executors

Your executor does not need any special qualifications. However, you should choose someone reliable and trustworthy. It is advisable to appoint two executors. Any beneficiary under your will can act as an executor of your will. Family members can be appointed as executors and it is advisable to appoint an executor who is resident in the State. The age of the executor is a factor you should bear in mind. While there is no age requirement, there are obvious reasons as to why you would not choose someone too elderly, or too young.

Appointment of guardians

It is important if you are the parent of a child, that you make a will appointing guardians to act on your behalf. If you do not appoint guardians under your will, the court will appoint guardians on your behalf. Where a parent dies and leaves the other parent surviving, that parent is considered the legal guardian of the child in the majority of cases. In the case of marital children, the mother and father of an infant are guardians jointly. This arises even in a situation where divorce has occurred; the guardianship rights are not affected.

The situation however is different to non-martial children. The natural mother is automatically deemed to be the guardian of the dependent children however, for the father, usually, an application will need to be made to the courts for guardianship.

Marriage and wills

If you are married, you must make proper provision for your spouse and any dependent children in your will. If you have no children, your surviving Spouse has a right to half the estate including the family home. If you have children, your surviving Spouse has a right to one third of your estate. Where you dispose of property within three years of the date of your death in an attempt to either disinherit a spouse or children, the courts may rule the disposition void.

Under section 120 of the Succession Act 1965, where your spouse has either deserted or committed a very serious offence against you or your children, that spouse will lose the right to a share in the estate.

Additionally, the legal right share of the spouse can also be extinguished following judicial separation and divorce proceedings. Should your spouse not wish for the legal right share to take place, your spouse can enter in to what’s called a Deed of Renunciation (renouncing rights) in writing and this must be done prior to you, the testator’s, death.

As this is a final document, your spouse should obtain independent legal advice about the consequence of entering in to a Deed of Renunciation and said consequences should be clearly explained to your spouse. The Deed of Renunciation should then be kept with the original will.

Proper Provision for Children

Under the terms of your will, you should always ensure proper provision is made for your children. The courts consider provision that was made for children during your lifetime. However, on your death, should a child feel they were not properly provided for, there is provision under section 117 of the Succession Act 1965 as amended, whereby a disgruntled child can make an application before the courts that proper provision was not made for them under your will. This application must be brought within six months from the Grant of Probate extracted by your executors. The courts look at the means of the testator and the number of children the testator has and their positions and ages in life and the child’s financial position.

Joint bank accounts

If you have a joint bank account with your spouse, the surviving account holder will be entitled to the money in that account. This is known as the Right of Survivorship.

Did you Know?

Did you know nominations can be made with your Local Credit Union, whereby up to €23,000 can fall outside of the will, and you may nominate a person to receive up to that amount on your death. This means that the Credit Union will contact that person directly in the weeks following your death and a payment will be made to them. This avoids the necessity to wait for a Grant of Probate to be administered, which can take upwards of two years.