Guide to Making a Will: Foreign Wills and Witness Requirements (Part II)

Introduction

A will is significant as it can make the administration of a person’s estate run smoothly whereby a clear expression of a person’s wishes can help prevent costly, time-consuming disputes over the distribution of their assets.

In Part I of our Guide to Wills, we examined the importance of making a will, outlined the key requirements to consider and explained the rules governing the execution of a will.

In Part II of our Guide, we explain how a will can be revoked, when foreign wills are relevant to consider and set out the requirements for a witness.

How Can a Will be Revoked?

• A will can be revoked by the subsequent marriage of the testator unless it is made in contemplation of that marriage. However, where a couple have entered into a civil partnership and subsequently make wills and thereafter marry, that marriage does not revoke the earlier will.

• It should be noted that while marriage revokes a will, divorce does not. In circumstances where somebody divorces and they have previously executed a will leaving everything to their spouse they need to revoke that will or alternatively make another will after their divorce.

• A will can be revoked by a subsequent will or codicil.

• A will can be revoked by a written note signed by the person who made the will in the presence of 2 witnesses who are both present at the same time.

• A will can be revoked by burning, tearing or destruction by the testator or by somebody in their presence and on their instruction with the intention to revoke.

• Where an individual makes a will to deal with property that they own abroad, it is very important to ensure that the execution of that foreign will does not inadvertently revoke the Irish will. It is important in such circumstances that the testator informs the foreign lawyer of the existence of the Irish will.

What about Foreign Wills?

• If a testator has property in another jurisdiction it may be advisable that they execute a will in that jurisdiction. Irish law may not necessarily be sufficient or valid in the other legal system.

• An attorney experienced in the law of the particular jurisdiction will be able to advise the testator on what the law dictates concerning the estate of the testator in that jurisdiction. For instance, in some civil law countries, provision is made for an automatic life interest in favour of the surviving spouse and defined shares for the children which cannot be overruled by a will.

What are the Rules for a Witness?

• A witness should not be a beneficiary under the terms of the will.

• It is also important that neither the spouse or civil partner of the beneficiary witnesses the will. If they do, then while the will would be valid, the bequest to that beneficiary would be void. An executor can be a witness so long as they are not a beneficiary.

Does a Will Speak from Death or from the Date of Execution?

Section 89 of the Succession Act provides that a will is deemed to have been executed immediately before the death of the testator. Therefore, if a will was executed say 10 years prior to the death of the testator and took into account circumstances and assets that existed at that time regardless of the fact that there have been changes over the years, the will would be treated as having been executed immediately prior to the death of the testator.

Sometimes this will lead to certain bequests failing. For instance, where property was subsequently sold prior to the death of the testator which had previously been the subject matter of a bequest to an individual, that bequest effectively lapses.

Alternatively, at the time when the will was made 10 years previously, the testator had assets worth a certain amount which due to whatever circumstances had reduced over time.  In such circumstances, the bequests are abated in accordance with the various rules to the various beneficiaries and the result is that they would  generally take a percentage of what was originally intended.

Section 89 can be avoided if there is a contrary intention provided for in the will.

Conclusion

To ensure that a person’s wishes are correctly executed with regard to the distribution of their assets upon their death, it is essential to have a valid will in place.

It is also important to provide for the distribution of an estate in the most tax efficient way possible where obtaining the appropriate professional advice is the key to achieving these aims.

Further Information

Please see our Guide to Making a Will: Key Considerations Explained (Part I) on the importance of making a will and key requirements to consider.

For expert legal guidance on making a will, please contact Caitriona Gahan, Head of our Wills, Probate & Estate Planning Team.

For further details, see our Wills & Trust Wills, Estate Planning and Inheritance Tax pages.