Wills and Succession
Wills and Succession
- A will is a witnessed document that sets out in writing the deceased's wishes for his or her possessions, (called his or her 'estate'), after death.
- Testator (testatrix if female) - the person who has died leaving a valid will. In this e-card, the term "testator" is used on a gender-neutral basis.
- Intestacy - the law that applies if someone dies without leaving a will ("the intestate")
- Probate - the process of "proving " a will or obtaining a grant of administration from the High Court. The executor of a will cannot begin to settle the property of the estate without a grant of probate from the Probate Office or District Probate Registry of the High Court.
- Executor - the person (if any) named in the will who administers the testator's estate.
- Administrator - if no testator is named in the will, or a person dies intestate, this is the person who administers the person's estate following a grant of administration.
Making a will
- For a will to be valid it must be:
- Made by a person of full age (18) and capacity
- In writing
- Witnessed - in person, by two witnesses who are not beneficiaries under the will. (note: a beneficiary witnessing the will does not void the will in its entirety - only the gift to the beneficiary and/or their spouse).
- Not revoked. A will is revoked if a person gets married ( unless it was made in contemplation of the marriage), if it is deliberately destroyed, or if the person makes a new will ( Note: accidental destruction does not revoke the will, but it will need to be proved from a copy).
2. There is no legal requirement for a solicitor to be involved in making a will though clearly it may be prudent for a person to engage a solicitor to be involved in making a will though clearly it may be prudent for a person to engage a solicitor to do so. A solicitor will ensure that a will is properly drafted and deals with all necessary matters. For example a will should deal with all of the property of a person's estate. If there is property left over after all of the gifts in the will are made this will result in a partial intestacy. A solicitor drafting a will can include a residue clause which specifies what is to happen to the remainder of the estate in this situation.
What happens if I die without making a will?
- If you die without making a will, the rules of intestacy apply. The estate vests in the Master of the High Court until a relative applies for and obtains a Grant of Administration Intestate. Once appointed the Administrator acts in basically the same way as an executor of a will but they must distribute the estate according to the rules below.
- If you are married but have no surviving issue (descendants), your spouse will inherit your entire estate. If your spouse is dead and you have issue, the estate will be divided up among them on what is called a per stripes basis. What this basically means is that your estate is divided up equally between your surviving children, but if any of your children who are deceased has children themselves, then what would have been their share is in turn divided up between their own children (your grandchildren). This can continue on through the generations e.g. a deceased grandchild's share can be divided up among great-grandchildren etc.
- If you have both a spouse and issue, then your spouse gets two-thirds of the estate and your issue get one-third divided up between them as set out above. If you have neither spouse or issue alive, but if either or both your parents are alive, then the estate will be distributed between them.
- Beyond this the rules of intestacy become increasingly more complex and your property may be distributed to your other surviving relatives and it is best to consult a solicitor. If you have no surviving relatives your property will vest in the State.
Legal Right Share/ Succession Act proceedings
- Under the Succession Act 1965, A spouse has a right to a particular share of their spouse's estate. This is called the "Legal Right Share" and is one-half of the estate if there are no children or one-third of the estate if their are children.
- If a spouse is not left the legal right share, it does automatically not invalid the will. But if the spouse was not left a gift they are entitled to the legal right share. If the spouse is left a gift the executor/administrator must offer the spouse the choice to either take the gift in the will and forgo the legal right share or to insist on their right share. In either case if the spouse receives her legal right share then the gifts to all other beneficiaries are reduced accordingly. The spouse may also opt to take the family home in satisfaction of the legal right share provided that its value is less than the combined value of share of the estate that she and her dependant children are entitled to.
- A spouse may lose their legal right share in certain circumstances (divorce, if they are convicted of the murder/manslaughter/attempted murder of the deceased or an offence against the deceased or a dependant child carrying a sentence of more than two years, or desertion for more that two years provided that such desertion is not justified by the spouse's bad behaviour). A separation agreement or blocking orders are made as ancillary orders in a judicial separation.
- Children have no right to a legal right share, However where the deceased dies having left a will, a child may take proceedings under section 117 of the Succession Act1965 to be awarded a share of the estate on the basis that the parent failed in their moral duty to properly provide for the child. If the Court grants the application the order made cannot operate to reduce a spouse's (whether a parent or step-parent of the plaintiff)share below the legal right share. Section 117 applications can only be taken where there is a will. They cannot be taken where a person dies intestate.
The above is provided for information purposes only. It does not purport to be either a statement of the law or legal advice.