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A “Will” is the Document in which the person making the Will - the Testator or Testatrix according to gender, sets out his or her wishes in relation to certain matters which are to take effect on his or her death. (All reference which follow to a Testator apply also to a Testatrix). It is assumed that a Testator is confined to the making of one “Will” but this is not in fact so – a Will may consist of a number of documents provided that each one is executed in accordance with the required statutory formalities. We usually refer to the principle testamentary document as the Will and any additional documents as Codicils to the Will. It is the aggregate of the documents in those circumstances which constitutes the Testator’s Will.
The rules in relation to the making of a Will are set out in the Wills Act 1837 and also in the Succession Act 1965.
1. A Will must be in writing
This does not mean that the Will has to be hand written; it may be hand written, typed or be a combination so long as the document provides permanent evidence of the Testator’s intention and the terms of his Will. No particular form of words is required and the document can be informal and short so long as it is clear that the Testator intended the document to be his Will.
2. Revocation of former Wills.
It is a vital component of any Will that all former Wills and documents and testamentary documents are revoked by the making of the most recent Will. Clearly, it would lead to serious difficulties if a Will did not contain a revocation clause and there were other Wills in existence. There is no particular form of words which constitute a revocation but a standard wording would be for example “I hereby revoke all former Wills and Testamentary Instruments made by me and declare this to be my last Will and Testament”. It is not sufficient simply to say “This is my last Will and Testament”.
3. Mental capacity
The Testator must show that he intends to deal with the distribution of his property which is to take effect on his death. Similarly, if a Testator wishes to revoke a Will, the same test of his mental capacity applies as if he were making a Will in the first instance. If the Testator’s faculties were impaired for example by drunkenness or substance abuse the Will would not be effective.
4. Appointment of Executors
The duties of an Executor can be onerous and it is unwise to appoint an Executor without asking the proposed
Executor/Executrix if he or she would carry out the function. The Executor is responsible for the carrying out of the Testator’s wishes – this includes the preparation of the Oath setting out the Testator’s assets and liabilities, an application to the Probate Office for the extraction of a Grant of Probate and finally the distribution of the deceased’s assets and the preparation of an Administration Account detailing the value of the assets at the date of death and the distribution of same to the Beneficiaries. A Testator may appoint an Executor absolutely or the appointment may be subject to a condition, i.e. I appoint A as my Executor and if he refuses to act as Executor then I appoint B. A person who is appointed an Executor is not obliged to accept but if he does not wish to carry out the function then he should renounce before taking out the Grant of Probate. Taking out the Grant of Probate confirms his position as Executor and then he is bound to carry out his duties as an Executor. The Executor’s function is to preserve, protect and administer the Estate of the deceased, and therefore, can be an onerous task which is why it is advisable that a Testator discuss with a prospective Executor whether or not he would be prepared to carry out those duties.
5. Appointment of Trustees
In addition to the appointment of Executors, a Testator may also appoint Trustees where for example there are minor children whose entitlement is to be managed by Trustees until they reach perhaps 21 or 23 years. The Testator may appoint his Executor/Executors to be his Trustees also but it is more advisable that the Testator appoint Trustees who take over the management of the assets on behalf of the minor children when the Executor has completed the administration of the Estate. The duties of a Trustee are quite different and should not be confused with those of an Executor. For reasons which are obvious it is advisable to appoint two Trustees to safeguard the inheritance and to act prudently in the investment and management of assets on behalf of minor beneficiaries.
6. Signature and witnessing of Will
The Will must be signed at the end of the text and must be signed in the presence of two or more witnesses who are all present at the same time and each witness (usually two) witnesses the signature of the Testator in the presence of the Testator. There may be situations where a Testator is incapable of writing perhaps because of illiteracy or physical disability and in those circumstances he may sign the Will by making a mark. A Testator may try to sign his name but because of a physical infirmity may be unable to finish the signature or indeed to write legibly. It is for these reasons that it is vital that the witnesses are present at the time that the Testator signs the Will so that if required at a later stage by the Probate Office, the witnesses can swear an Affidavit confirming that they were present at the time the Testator signed the Will. Whatever manner the Testator uses to sign his Will the vital requirement is that he intended his initials or mark or part signature to be his signature to the Will. The date on which the Will is executed is generally written just before the Testator’s signature. Wills should be kept in a safe place. Generally, the original Will is recorded in the Solicitor’s Office in which the Will was made and then placed in a fireproof safe. The Testator is usually given a certified copy of the Will for his records. |
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| These are intended as a general guide to the subject matter, it should not be used as a basis for decisions. For this purpose advice should be obtained which takes into account all the client's circumstances. Every effort has been made to ensure the accuracy of the information. In view of its purpose the reader will appreciate that we are unable to accept liability for any errors or omissions which may arise. |
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