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  • Brian Morgan, Principal in Morgan McManus Solicitors, advises on the many problems which can arise when people make Home-made Wills.

    Be careful when making your Will

    A Homemade Will – What could possibly go wrong?

    It is possible to go into Easons in Dublin and buy a “Home-Made Will” template. This document will comprise paragraphs with the names of persons and properties left in blank and all the person (in this case named the “Testator”) making their Will has to do is simply fill in the names of the Beneficiaries whom they wish to benefit and details of the property bequeathed. But, did you hear the story about the person who completed an Easons` Will and left her daughter to her house! Yes, it’s true! “Home-Made Wills”, it has been stated, are more dangerous than home-made explosives!

    Law Society Wills Drafting Masterclass

    On Thursday 5th December last, I attended at the Law Society Wills Drafting Masterclass, where presentations were given by a number of experts on the drafting of Wills and Trusts, to include also the Tax strategies used to ensure minimisation of Tax liability when writing your Will. One of those experts was Anne Marie Maher BL, a Barrister who for many years has represented Litigants in the High Court where mistakes had been made by Testators when making their Wills, resulting in it being necessary for the Court to interpret or correct mistakes which had been made in those Wills. In some cases, Wills are struck out for lack of certainty, resulting in the deceased being deemed to have died Intestate and thus losing control over the distribution of his Estate.

    Common Mistakes

    In her presentation, Anne Marie Maher pointed to many matters which can often be overlooked, such as:
    • Name and address of Testator;
    • Failure to include a Revocation Clause (thus not overriding a previous Will);
    • Appointment of Executors;
    • Failure to include a Residue Clause thus creating an Intestacy with regard to part of the Estate;
    • No date on the Will or different dates at different places;
    • Interlineations alterations, erasures and obliterations.
    In most cases, it is possible for an Application to be made to the Non-Contentious Probate Court seeking the guidance of the Court in correcting these difficulties. Such an Application however can often cost in excess of €5,000 plus VAT. Is it really wise to begrudge paying a Solicitor sometimes as little as €250 to advise on and complete a Will for you where that Will should go some way to ensuring that your Will does not end up in the High Court for lack of certainty!

    Contentious Wills

    In many other cases however, Wills are contested due to the fact that the Will as executed did not comply with the Succession Act 1965 or other relevant legislation. In other cases, Wills are contested because the deceased Testator did not make proper legal provision for his wife or for his children. In some cases, where there is proof of Undue Influence in the execution of a Will (where, for instance, a particular beneficiary was subsequently deemed by a Court to have exerted pressure on the deceased Testator to benefit that Beneficiary), the Will has been struck down by the Court.

    While some of these cases will be heard by the Circuit Court, many of these cases are heard by the High Court and the costs can often well exceed €100,000 plus VAT.

    Instructing a Solicitor

    It is very wise in those circumstances to instruct a Solicitor when you are considering making a Will. The Solicitor will sit down with you and listen to your wishes. He will however also ensure to take full details of all property owned by you and details of all related persons. He will ensure that you do not overlook your legal obligations to those persons and he will also ensure that what you ultimately decide to do does not incur huge liabilities for Inheritance Tax for those beneficiaries.

    While nobody can guarantee that, after a Testator’s death, a Will will not be disputed, there is less chance of that occurring where a Will is made before a Solicitor and in circumstances where that Solicitor takes the time to ensure that a Testator has considered all relevant matters before finally putting pen to paper.

    So the next time you might consider making a “Home-Made Will” or you are worrying about the cost of making that Will with a Solicitor you might also consider the many High Court cases which are reported in the daily Newspapers, where “Home-Made Wills” and badly constructed Wills resulted at huge cost in the necessity for families to seek the protection of the Court.

    For more information on Wills & Probate issues, contact:

    Brian Morgan
    Morgan McManus Solicitors.
    By e-mail: bmorgan@morganmcmanus.ie
    Or by phone: 00353 47 51011