Importance of a property drafted Will

The importance of having a Will properly drawn up and executed was made quite clear by Mr. Justice Paul Gilligan in a judgment handed down in late 2011.  The learned judge ruled that the Will of the late poet, John O’Donoghue, was void for uncertainty, thus giving it no legal effect.  It transpired during the proceedings that the late Mr. O’Donoghue had not sought the benefit of legal advice and assistance and that this was evident from the terms of the Will.

 

Mr. Justice Gilligan determined that he was “unable to decipher the exact meaning” of the Will of Mr. O’Donoghue and this was due to the poor drafting contained in the testamentary document.  Mr. O’Donoghue stated that he left all of his worldly possessions to his mother with the instruction that they were “to be divided equally and fairly among my family with special care and extra help” to his sister, Mary.   However, this poor phrasing of his intentions left doubt in the court’s mind as to what was actually intended.  The difficulty lay in the fact that the court could not decipher how the “mutually exclusive” instruction was to be interpreted.  Mr. O’Donoghue had stated that his assets were to be divided equally among his siblings yet, contrary to this, his sister Mary was to benefit from further extra help.  In addition, despite having left the entirety of his estate to his mother to divide, he then stipulated that further cash gifts were to be left to a number of other named recipients.   The court would obviously have huge difficulty in correctly construing the intention of the late Mr. O’Donoghue given this further conflicting intent.

Where a Will is held to be void for uncertainty, the appointed executor in the Will is unable to have the Will probated in the Probate Office.  This necessitates that  Letters of Administration are left to be issued as the deceased is now determined to have died intestate.

What can a person dispose of through his or her Will?

The Succession Act 1965 governs what may be disposed of by a Will or Codicil.  S. 76 of the Act states that “A person may by his will, executed in accordance with this Act, dispose of all property which he is beneficially entitled to at the time of his death and which on his death devolves on his personal representative.”  This may be done by way of the following:

 

Specific Legacy

This is a gift for specific items such as a watch/engagement ring etc. Based on the assumption that the deceased still owns the item at the date of their death it will pass to whomever it was bequeathed in the deceased’s will.  However, if the specific item is disposed of by the Testator / rix during his or her lifetime or is lost or destroyed the gift will be adeemed i.e. the legacy is set aside and the beneficiary receives nothing.

 

General Legacy

This is a gift out of the remainder of the estate after due payment of debts and taxes owed by the deceased and after distribution of specific legacies. Such gifts are generally pecuniary (cash sums) in nature e. g. legacy of €250.00 to my nephew, John Smith.  This legacy cannot be set aside but if the residue is insufficient to pay the debts of the deceased, general legacies will be the first to abate pro rata, e.g. they will be apportioned.  For example, if there were general legacies amounting to €15,000 and, after due payment of the debts and expenses of the deceased’s estate, the balance remaining was €9,000 then each legatee would get 60% of his or her legacy.

 

Demonstrative Legacy:

This is a mixture of a specific and general legacy e. g. “I give to my cousin, John Smith €3,000 out of my bank account held with Bank of Ireland, College Green, Dublin 2”.  This type of legacy is not set aside in that if the fund is insufficient to meet the legacy then it becomes a general legacy and assumes all the characteristics of a general legacy. It is, however, liable to abatement (apportionment) as referred to above.

 

Care should also be taken in deciding who to benefit and how he or she should receive that benefit.  The following may be taken into consideration:

 

Lapsed Bequests

A gift may fail if a named beneficiary has predeceased the Testator / rix and the property will pass to the residue of the Estate of the deceased Testator / rix.  However, there are certain exceptions to this rule which must be considered in drafting of a Will.

 

Conditional Bequests

It is open to a Testator /rix that he or she may impose a condition on a bequest in his or her will.  In this situation, if the beneficiary fails to comply with the condition the said bequest will be forfeited.  This type of bequest requires careful drafting in order that the gift will not lapse for lack of certainty.

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