LEGAL REQUIREMENTS

There are certain legal requirements which must be satisfied before a will can be considered a valid will which is capable of being administered by the Executor/Executrix appointed therein.  The first and most obvious criteria is that the person who is making the will (the Testator) has testamentary capacity or is capable of making a will.  In order to have testamentary capacity you must be over 18 years of age and be of sound disposing mind.  It is usually the latter which causes the most difficulty.  There has been much case law in this area and essentially the Testator must understand the following in order to be considered to have testamentary capacity:-

• the nature of the act of making a will
• the effect of the will itself
• the extent of the property of which he/she is disposing
• and appreciate the claims of any person who may have a claim to his /her estate.

There is a presumption is a will is executed correctly that the Testator has testamentary capacity and the burden of proving its absence rests with those persons challenging the validity of the will.

The Succession Act, 1965 also sets out further requirements relating to execution of the will such as:-

• it must be in writing
• the will must be signed by the Testator or by some person instructed by him at the foot or end of the will
  it must be signed in the presence of two of more witnesses who are present at the same time and the witnesses must also sign the will in the presence of the Testator.  The witnesses cannot be a spouse of the Testator or a person to whom the Testator has left a legacy in the will.  This provision also excludes the will being witnessed by a professional Executor (such as a Solicitor) who is also entitled to charge a fee under the terms of the will.  If such a beneficiary or legatee witnesses the will their legacy will fail although the will itself will still be valid. 

In the event that the Testator marries subsequent to the making of their will, that will is revoked unless it was made in contemplation of that marriage.  In practice it is recommended that a couple would make a fresh will after their marriage.

A challenge to the validity of a will based on the absence of the foregoing legal requirements is one of the avenues, which can be explored by a party objecting to the terms of a will.

The above is not an exhaustive article on this area and must be used for information purposes only.  Legal advice must be obtained before embarking on any such claim against a will.

Deirdre Wilson

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