If you think it’s just about making Wills and dividing up what you own between your family, you are mistaken says Sharon Cahir, Senior Law Solicitor. Creating a Will is about supporting family relationships, ensuring clarity, supporting family harmony and avoiding acrimony within your family after you are gone. Sharon says you can leave a legacy of hurt or harmony and making a will with clarity is integral to that.
The Top Commandments of Will making include:
1 THOU SHALT MAKE A WILL
Don’t underestimate the significance of consultation and having a sounding board making your Will. Maybe you have put off making a Will or Estate plan because you are unsure what to do or maybe you are worried about offending someone who has expectations. Make a Will – do not leave it to chance.
2 THOU SHALT UNDERSTAND A WILL CAN BE CHALLENGED
When a Will is successfully challenged in court, it can be voided in its entirety or partly voided. A provision from an earlier Will can even be reinstated.
Underestimating the strict laws in Will-making and succession is a costly exercise especially for the next
generation. The law will protect your assets, in line with the strict requirements of the Succession Act.
Wills voided in the court will distribute the property and Estate as if the Will had never existed. In this instance, the distribution of your Estate would be shared between your next of kin under the Rules of Intestacy.
3 REMEMBER ‘THE FAIR DEAL SCHEME’ EXISTS AFTER DEATH
The ‘nursing home loan scheme’, or as it has more commonly come to be known as the ‘Fair Deal loan scheme’, applies where the person in long-term nursing home care has assets and they have to contribute to the cost of their care. The person availing of the Fair Deal scheme may choose to delay paying for their care during their lifetime and defer payment until after their death, using their assets as security for the deferred loan. The person in nursing home care must provide written consent to have a Charging Order registered against their assets when choosing to defer the cost of their contribution toward their care.
The Charging Order is a simple type of mortgage which secures the money that the Health Service Executive (HSE) loans to them in the form of deferred payment. The HSE pays the full cost of care to the nursing home on behalf of the person in nursing home care, and the person’s contribution is repaid at some time in the future.
4 HONOUR THE STRICT RULES OF VALID WILL MAKING
Wills and the contents of a Will are challenged for a variety of reasons, but the most common grounds are:
- The lack of due execution of a Will in the signature by the person making the Will in the presence of two witnesses, all three being at the same place, at the same time.
- A person must have the mental capacity to make a Will and be of ‘sound disposing of mind’ to make a legal and binding Will. Perhaps a person was under duress or intoxicated when making their Will.
- If a beneficiary named in the Will becomes a witness to the Will-maker’s signature then that beneficiary cannot inherit under that Will. Two independent witnesses are necessary so my advice is ‘Thou shalt not make a homemade Will’ as these simple errors are too easy to make.
When you buy pre-printed Wills in a shop, you don’t know what you don’t know, and it is all too easy to make an error. Homemade Wills increase the risk of a challenge to the Will & your wishes.
5 LET NOT THE STATE INHERIT YOUR ASSETS
The Succession Act states that if someone dies without a Will and there is no-one to take it under the rules for Intestate Estates, then the State ‘shall take the estate as the ultimate intestate successor’. So make a Will and direct where your assets are to go.
6 THOU SHALT UPDATE YOUR WILL IN AGES AND STAGES
Every stage and age bring with it a different consideration for the passing of your assets to your next of kin. There are many reasons to review and update Wills and other estate planning
Maybe you’ve found the love of your life and you want to include them in your Will and Estate plan, maybe you are co-habiting or maybe you are married. Do you have dependants you wish to include? Have you had a new baby or adopted a child? Are you going through a divorce or separation? Have you bought or sold a significant or valuable asset? Are your children now over 18 years of age? Review your Will regularly and update your will to keep it reflective of your wishes.
Cahir and Co Ennis are recognised Solicitors for the Elderly . Call Sharon Cahir on 065 6828383 with your Probate and Will & Succession Questions.