Will template Ireland: making a will that is actually valid

An Irish will is valid if it is in writing, signed at the foot or end by you or by someone in your presence and at your direction, and that signature is made or acknowledged by you in the presence of two witnesses present at the same time, each of whom then attests it by signing in your presence. That is section 78 of the Succession Act 1965. The wording of the gifts matters, but validity is usually lost at the signing table.

The signing rules, precisely

Rule 2 of section 78 is the one that fails. Both witnesses must be in the room together when you sign or acknowledge your signature. They need not sign in each other's presence, and no form of attestation is necessary — but they must each sign while you are present. A will signed in the kitchen and carried next door to the neighbour is not validly executed.

Rule 5 is the second most common failure: a signature shall not be operative to give effect to any disposition or direction inserted after the signature is made. Do not leave a blank and fill it in afterwards.

Section 86 deals with anything you change later. An obliteration, interlineation or other alteration after execution has no effect unless it is executed in the same way, or you and both witnesses sign in the margin or opposite a memorandum referring to it. A pen stroke through a name changes nothing.

Who must not witness

Section 82 makes any devise, bequest, estate, interest, gift or appointment in the will to an attesting witness — or to that witness's spouse or civil partner — utterly null and void so far as that person is concerned. The will itself remains valid. The gift is simply lost. Asking the person who inherits to hold the pen is the classic homemade-will disaster.

Two people who may safely witness: an executor (section 84 confirms it) and a creditor whose debt is charged on the estate (section 83). And under section 81 the will is not invalidated merely because a witness turns out to be incompetent to give evidence.

Who may make one

Section 77(1) requires the testator to have attained eighteen years or to be, or have been, married, and to be of sound disposing mind. Section 77(2) makes one exception: a person entitled to appoint a guardian of an infant may make that appointment by will even under eighteen.

Marriage revokes it

Section 85(1): a will is revoked by the testator's subsequent marriage or entry into a civil partnership, except a will made in contemplation of that marriage or civil partnership, whether or not the will says so. The exception is narrow — the will must contemplate that marriage, to that person. Marrying someone else revokes it. Saying so expressly in the will removes the argument, and is the reason a will made before a wedding should name the intended spouse.

Section 85(2) is the only other route to revocation: another duly executed will or codicil, a writing declaring an intention to revoke and executed as a will, or burning, tearing or destruction by the testator, or by someone in the testator's presence and at the testator's direction, with the intention of revoking.

The share you cannot write around

Ireland does not have English testamentary freedom. Section 111 gives a surviving spouse a right to one half of the estate where there are no children and one third where there are; section 111A gives a civil partner the same. Section 112 makes that "legal right" take priority over devises, bequests and shares on intestacy.

The only escapes are a renunciation under section 113 — in an ante-nuptial contract in writing, or in writing by the spouse after the marriage and during your lifetime — and, on judicial separation, a court order under section 14 of the Family Law Act 1995. Divorce needs neither, because a former spouse is not a spouse. Being separated is not enough. See the legal right share explained.

Children have no fixed share. Section 117 lets a child of any age apply to the court for provision where the testator failed in the moral duty to make proper provision in accordance with the testator's means, and section 117(6) gives a strict six months from the first taking out of representation.

What a complete Irish will contains

1. Revocation of all earlier wills, so two documents cannot operate at once.
2. Executors — ideally two, or one with a substitute. Where a beneficiary is under eighteen a sole personal representative cannot give a good receipt for the minor's share.
3. Guardians for children under eighteen, appointed under section 7 of the Guardianship of Infants Act 1964. A guardian appointed by will acts jointly with a surviving parent who is a guardian.
4. The legal right share, dealt with expressly — either exceeded, satisfied, or given in terms.
5. Specific gifts, with enough detail to identify both the item and the person.
6. The residue — everything left after debts, taxes and legacies. This is the clause that actually distributes most estates.
7. Substitutions, saying who takes if a beneficiary dies first. Without them a gift lapses and may produce a partial intestacy under Part VI.
8. A trust where a young beneficiary would otherwise take at eighteen.
9. Executors' powers — to sell, to invest without being confined to authorised investments, to appropriate assets under section 55, and to charge where a trustee acts professionally.
10. An attestation clause recording that the section 78 formalities were followed.

A cohabitant inherits nothing

However long the relationship, and whether or not there are children. A qualified cohabitant may apply to the court for provision out of the estate under section 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 — a discretionary, time-limited, contested application, not a share. If you intend a partner you are not married to to inherit, you must name them.

Two practical points

Tell your executors where the original is. A copy is not admitted to probate without an application, and an original last known to be in your custody that cannot be found after death is presumed destroyed with the intention of revoking it.

And take advice on Capital Acquisitions Tax before fixing the amounts. A spouse or civil partner is exempt; children, other relatives and strangers each fall into different group thresholds, and a gift that looks generous can arrive net of a large share.

Our last will and testament is executed in the section 78 form, prints a note for the witnesses on the signature page, and calculates the legal right share before it lets you distribute the rest.