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    Last Will

    In my Article titled “Deceased`s Will declared void for uncertainty”, I referred to the High Court Judgment of Mr Justice Gilligan delivered on the 1st December 2011 in respect of a Will made on the 21st February 2001 by the late Dr. John O`Donohue in a case titled JOSEPHINE (OTHERWISE JOSIE) O’DONOHUE Plaintiff –v- PETER O`DONOHUE Defendant, IN THE MATTER OF THE ESTATE OF JOHN O’DONOHUE, LATE OF GLENTRASNA, CAMUS, CONNEMARA, IN THE COUNTY OF GALWAY, AUTHOR, DECEASED and AND IN THE MATTER OF QUESTIONS ARISING IN THE ADMINISTRATION OF THE ESTATE OF THE SAID JOHN O’DONOHUE DECEASED.
    I explained the importance of certainty of terms in the making of a Will and consequently the importance of obtaining legal advice when that drafting that Will, pointing out that sometimes a “home-made Will” is a very expensive exercise.

    Background Facts
    Dr. John O’Donohue (the “Testator”) died testate on the 4th day of January, 2008, a bachelor without issue. He was survived by his mother, Mrs. Josephine (otherwise Josie) O’Donohue (the plaintiff), his brothers, Patrick, and Peter O’Donohue (the defendant) and his sister, Mary O’Donohue. The testator was also survived by two nieces and two nephews who were the children of his brothers.

    The Testator’s Will was prepared without the benefit of legal advice. The main difficulty with the Will was that the estate was,according to the Will, to be divided equally among the Testator’s family but that his sister was to receive extra care and help. Matters were further complicated by the fact that both the plaintiff and Mr. Patrick O’Donohue witnessed the Will, thus invalidating any benefit to them under this Will. It was acknowledged that Section 90 of the 1965 Act prevented both of them from benefiting under the Will and created a situation of partial intestacy. This half share of the residual estate held as tenants in common therefore fell to the statutory next of kin, who in accordance with s. 68 of the 1965 Act, was the plaintiff.

    The Judge`s Decision
    The Judge concluded that the Testator had unfortunately provided an illustration of exactly how a person should not make a Will. While there could be little doubt but that the Testator was a man of considerable learning, the fact that he did not benefit from legal advice or assistance was evident from the Will he drew up. Not only was it deficient in terms of the lack of certainty as to his intention but moreover he unwittingly made the classic error of having two of the intended beneficiaries act as witnesses to his signature, thereby depriving both as a matter of law from benefiting under the terms of the Will.

    Accordingly, it was with regret that the Judge held that the terms of the Will rendered it void for uncertainty. The entirety of the Testator’s estate consequently fell into intestacy and the statutory rules applied thereby bringing about a situation, pursuant to s. 68 of the 1965 Act, that the deceased’s mother took the entire estate.

    The testator had previously taken legal advice with regard to his previous Will made in 1988 which could have been deemed to have been valid but for the fact that the 2001 Will, although declared valid due to uncertainty, was deemed to have validly revoked the 1988 Will. The result was that neither the terms of the 1988 nor the 2001 Wills, and consequently the wishes of the deceased, could be effected.

    More importantly, had the testator made a legally effective 2001 Will and been properly advised as to the most tax efficient manner in which to deal with his €2m estate it was likely that an extensive Inheritance Tax liability could have been avoided. While not noted by Mr Justice Gilligan in this case, the consequence of deciding that the testator`s estate was to be taken by his mother meant that there would be 25% Inheritence Tax payable on that balance of the estate which exceeded the mother`s threshold (relevant at that time) of €43,400.00.

    While there may be occasions on which it may not be practical to seek legal advice before making a Will one of the reasons why some persons choose to make their own Will (commonly known as “a home-made Will”) is to save the legal costs of making a Will through the services of a solicitor. While one is not saying that the late Dr O`Donohue avoided taking legal advice for this reason this case is surely a salutary lesson to all persons contemplating making Wills that what might seem like a saving in legal costs could turn out to be expensive cost to the intended beneficiaries.

    This comment does not take account of the fact also that, in being obliged to take a case before the High Court on the validity of the Will, extensive legal costs payable to both the legal teams of the of both the Plaintiff and the Defendant were incurred, thus reducing further the net benefit to the estate.

    Brian Morgan
    Morgan McManus Solicitors
    Web : brilliantreddev.co.uk/morganmcmanus
    Email : bmorgan@morganmcmanus.ie