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.

A Solicitor 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.

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).

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.

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.

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.

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.

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.

We 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.

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.

An Ordinary Power of Attorney can be used in circumstances where you still have a healthy mental capacity but require someone to act on your behalf in certain situations. One such example of when an OPA would be used is if you were not able to handle your day-to-day banking. In this situation an OPA is drafted granting someone you trust the authority to carry out this task on your behalf – An OPA is usually an Adult child, Sibling or relation.  An OPA is usually for a specific purpose but can also grant a general authority to the “Attorney” (the person authorised to act on your behalf). An OPA ceases if at some point in the future the “Donor” (the person making the OPA) becomes incapacitated.

In contrast to an Ordinary Power of Attorney, an Enduring Power of Attorney does not become operable until such time as the Donor becomes incapacitated. What is meant by incapacity … “incapacity by reason of a mental condition to manage his or her own property or affairs”.

An EPA allows you to appoint an “Attorney” to handle your affairs if same becomes necessary due to the lack of capacity of the “Donor”; a typical scenario is when an elderly person who’s mental health is in decline will grant their adult child the role as Enduring Power of Attorney.

The Attorney is the person named in the EPA that will take over handling your affairs. The Donor is the person making the EPA and granting authority to the Attorney to handle their affairs should they become incapacitated in the future. The Attorney does not have to be a lawyer, it can be a close relative or friend that you can trust to take over the handling your affairs and you can always name more than one Attorney.

The Donor can grant authority for the Attorney to do anything that the Donor themselves can legally do. The Donor can also place restrictions on the powers to be granted to the Attorney.

It is advisable to name more than one Attorney in an EPA. If the Donor has named only one Attorney and that Attorney dies or becomes incapacitated themselves then the EPA ceases to operate.

The main advantage of having an EPA is that the Donor gets to decide who is going to be given such a tremendous power over his/her life should they become incapable in the future. This obviates the need for the incapacitated person to be made a Ward of Court in the future.

Your solicitor will require a medical certificate from your treating doctor at the time of drafting the EPA which states that you have the mental capacity to give instructions to draft the EPA and that you fully understand the ramifications of what you are doing. This medical certificate will be sent directly by your solicitor to your treating doctor and there is no need for you to try and obtain same in advance of meeting with your solicitor.

If a treating doctor does not believe that the Donor has the mental capacity to understand what they are doing, then it will not be possible for the solicitor to take any further instructions with regard to drafting the EPA. Therefore, it is of the utmost importance that consideration be given to putting an EPA in place as early as possible.

According to The Alzheimer’s Society of Ireland there are currently over 64,000 people living with Dementia in Ireland with approximately 11,000 new cases being diagnosed each year. It is estimated that this figure will double over the coming years due to Ireland’s rising population.

An EPA has no legal effect until such time as it is registered. An Enduring Power of Attorney can be revoked at any time before registration (if the Donor has the capacity to revoke the EPA). This means that until the EPA is registered it has no legal effect.
Usually, the solicitor that has drafted the EPA will be contacted by the nominated Attorney when the Donor has become incapable or is becoming incapable. The Attorney will ask the solicitor to have the EPA registered.
Before the EPA is sent to the Registrar of Wards of Court for registration the Solicitor acting on behalf of the Donor will put the relevant family members on notice of the intended application and will seek certification from the Donor’s treating doctor that the Donor has become or is becoming incapable.