How to Make a Will

The first question, is if you need to make a will at all. In the vast majority of cases, the answer to that is yes. If you have no money or property, then making a will just yet might be pointless. For everyone else, a will is necessary to make sure that your money or property is left to who you want to receive it and your wishes complied with insofar as possible. If you have not made a will, then the rules on intestacy will apply. This essentially means that your next of kin will inherit as set out in the Succession Act 1965 – your spouse and children would inherit first, if none then your parents, if none then your siblings, then your closest blood relation etc. 

The rules of intestacy for me would mean that my spouse would receive two thirds of my estate and my children one third between them.  This would not be ideal as I want my wife to be able to deal with our property as and she wants if I die. If she wants to sell our house and downsize, I don’t want the fact that my underage children own one third of it to create a problem. While I don’t believe that my children when grown up would seek to compel a sale of their mother’s house, I don’t want any creditors of theirs to be able to force such a sale. Similarly, if my wife inherits cash, I want her to be able to spend it as she chooses and to dictate to our children how they can spend it too. So in my case, I have made a will to provide that everything will pass to my wife in the case of my death. My will does a few other things too. I’ll go into detail on this later as I consider my own will to be pretty average and it might help in demonstrating what to think about in making your will.

So, in most cases you need to think about what property you want to leave to what people. You will also need to decide on an “executor” which is the person who implements your will. The executor is the person or people who essentially instructs the Solicitor and obtains a grant of probate allowing the money and assets to be collected, sold, and distributed amongst the beneficiaries (the people who inherit under the will). In my case, the first executor is my wife. I trust her and she’s capable so why use someone else? In most cases, the executor is a close family member who you trust.

Once you’ve decided who you want to have as your executor and who you want to inherit your property, you’re ready to make an appointment with a Solicitor to have your will drafted. It is possible to draft a will yourself. I don’t recommend this. There’s a long history of people suing each other because wills are unclear and there’s certain language that must be used in some scenarios, so it’s best to fork out what is likely to be about €100 plus VAT and get your will done up properly. People also commonly make a mistake when having their wills witnessed. For example, they have it witnessed by someone who stands to inherit, which isn’t permitted.

OK, so I said I’d go into some detail about my own will. As I’ve said, it essentially appoints my wife as executor (actually “executrix” which is the female version of the word) and leaves everything that I have on my death to my wife. However, if my wife dies before me or in the same accident as me, then another part of my will kicks in. Sometimes people die together, or simply don’t want to have to think about their will again, so usually when making a will, you have a “what if” section. I’ll leave everything to so and so, but if they’re dead, then I’ll leave it to the whatshisname.   

In my case, if my wife dies before me, I leave everything to my children. In fact, I said “such children as I shall have” because I made the will in early 2012 just before we had our first child. We’re now up to three and the provision still covers it.  I also appointed a new executor if my wife is dead, as obviously she won’t be able to do that job if she dies first. So assuming all my children are over eighteen years of age, my children will inherit my estate equally between them.

But because my children are currently under eighteen, I also provided for what would happen if one or more of them is under eighteen. In that event, I appoint trusted family members to be their guardians in case both my wife and I are dead. When doing this, I also appointed the guardians as trustees of any property left to the children. This means that my children will have guardians that I appointed if both my wife and I die. The children will have everything I own, but it will be held for them by the guardians as trustees, who will apply the property to the benefit of my children. I have given the guardians/trustees very broad powers to do whatever they want with the assets, although it must be applied to the benefit of the children. Once the children are eighteen, it is then passed to the children. Straightforward, simple and yet takes lots of scenarios into account.

Other clauses that you might want to consider are making a donation or bequest to charity in your will, or whether you want to leave any specific items of particular sentimental value to certain individuals. 

Here’s my will as promised:

This is the Last Will and Testament of me Thomas Dowling of [Address] and I hereby revoke all former Wills and Testamentary dispositions heretofore made by me.

I Appoint my wife [name] as Executrix of this my Will and I direct her with payment of all my just debts, funeral and testamentary expenses out of my estate.

I Give, Devise And Bequeath all of my property of every nature and kind, both real and personal, of which I may die seized, possessed of or entitled, to my wife [name] for her own use and benefit absolutely.

However, should my wife [name] predecease me or die in circumstances rendering it impossible to ascertain which of us survive the other or she does not survive me for a period of thirty days, her benefit shall be treated as if she died before me and the following provisions shall apply:-

I Hereby Appoint my brother in law [name] and [name] as Executors of this my Will and I direct them with payment of all my just debts, funeral and testamentary expenses out of my estate. 

I Hereby Appoint my brother in law [name] and his partner [name] as Trustees of this my Will and I APPOINT them as Trustees for the purposes of Section 57 of the Succession Act, 1965, the Conveyancing Acts, 1881-92 and the Settled Land Acts 1882-90 and the Conveyancing and Law Reform Act 2009 and I GIVE to my Trustees the powers as set out in the Schedule hereto. I also hereby appoint [name] and his partner [name] as guardians of any minor children who survive me.

I give, devise and bequeath all of my property of every nature and kind, both real and personal, of which I may die seized, possessed of or entitled, to such children as I shall have in equal shares for their own use and benefit absolutely.

If any child of mine be under the age of eighteen years of age on my death I give devise and bequeath the share of that child to my Trustees to be applied by them for the benefit of such child until he or she reaches eighteen years of age whereupon such share shall vest in such child.

In witness hereof I have hereunto signed my name this  day of                  2012

Signed Published and Declared by the Testator as and for his Last Will and Testament in the presence of us who in his presence and at his direction we both being present at the same time hereunto subscribe our names as witnesses, the said will having been printed on the front side only of the foregoing 2 sheets on A4 paper.

S C H E D U L E

Any monies requiring investment may be invested in or upon any investments of whatever nature and wherever situate whether producing income or not including the purchase of any immovable or moveable property or any interest in such property and including purchases made for the purposes of enabling all or any of the beneficiaries to have the occupation use or enjoyment in specie of the asset purchased or any other purposes which the Trustees consider to be in the interest of any one or more of the beneficiaries as the Trustees shall in their absolute discretion think fit so that the Trustees shall have the same full and unrestricted powers of making and changing investments of such monies as if they were absolutely and beneficially entitled to such monies and without prejudice to the generality of the above the Trustees shall not be under any obligation to diversify their investment of such monies.

The Trustees shall have the power to insure against any loss or damage from any peril any property for the time being comprised in the trust property for any amount and to pay the premiums out of the trust property.

My Trustees shall have the power to sell realise or dispose of any asset forming part of the estate of the trust property and to hold the proceeds of sale upon the trusts as set out above.

My Trustees may in their absolute discretion apply the income derived from my estate for the benefit of any beneficiary under the Trust hereby created.

So what happens next? Make an appointment and get your will made. Don’t put it off until it’s too late.

Should you have any queries relating to this article please do not hesitate to contact the writer Thomas Dowling, Solicitor by email: [email protected] or phone: 061 501100 and I’ll get our probate expert Kate O’Brien ([email protected]) to give you a bell, or visit our website www.hdm.ie.