Tuesday, April 24, 2018

Yes. This is one of the reasons why the services of a solicitor should be sought, to ensure the Will is drafted properly and for explanations as to what may happen in certain circumstances.

To make a Will legally valid the testator (the person who is making his Will) :-

  •  must be over 18 years of age; must be acting completely of his own accord;
  • must be of sound mind and be completely aware that he is making a Will;
  •  must know the nature and extent of his property and be able to fully explain who may expect to benefit from his estate;
  • it must be in writing and signed at the end by the testator and witnessed by two witnesses who are both present at the same time and who do not benefit under the Will.

SPOUSE’S ENTITLEMENT

The law provides that regardless of whether or not you include your spouse in your Will your surviving spouse will be automatically entitled to a share, know as the “legal right share”. This is one half of the estate if there are no children and one third if there are. A spouse may elect not to seek their legal right share.

Children too can challenge a Will. Although children have no automatic entitlement to a share of their parent’s estate, a child can bring an application to the courts under section 117 of the Succession Act of 1965. If the child feels that proper provision has not been made for them in the Will, they can apply to the court to have the matter considered. A “child” can be any age. There is a strict time limit on when this application must be taken. It must be taken within six months from the first taking out the Grant of Representation in the deceased’s estate. An extension of time is not possible.

The factors the court will consider include;

  1.  The number of children, ages and position in life.
  2.  The means of the deceased parent.
  3.  Age of the applicant child.
  4.  The child’s financial situation, prospects, educational access and financial provision made during his life by the parent.
  5.  The moral duty of the parent and child to each other. The courts will decide not what an average parent would have done but what a fair and just parent would have done.

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Dermot McNamara BCL,
Solicitor
Notary Public
Commissioner for Oaths

Collette Bryson BA (Hons)
Solicitor

Frances Cunneen T.E.P. Trust & Estate Practitioner

Lorraine Byrne

M.I.I.L.Ex, Legal Executive

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