Follow the Commandments of Wills
If you think it’s just about making wills and dividing up what you own between your family, you are mistaken; it’s about protecting the next generation of family relationships, ensuring clarity, supporting family harmony and avoiding acrimony within your family after you are gone.
- THOU SHALT UNDERSTAND A WILL CAN BE CHALLENGED
When wills are successfully challenged in court, it can be voided in its entirety or partly voided. There are times when a provision from an earlier will is reinstated. Underestimating the laws in estate planning, wills and succession, is a costly exercise especially for the next generation. The law will protect your assets, in line with the strict requirements of the Succession Act, so be aware that invalidating a will, challenging a will or questioning the intention behind a will is available.
So what, you say?
Wills voided in the court will distribute the property and estate as if the will had ever existed. In this instance, the distribution of your estate would follow the rules of intestacy and the estate would be shared between your next of kin, which may not be your wishes. A challenge may also protect your estate for anyone under duress, or without the capacity to make a will at the time it was drafted. So, capacity and clarity are critical.
- REMEMBER ‘THE FAIR DEAL SCHEME’ EXISTS AFTER DEATH
The ‘nursing home loan scheme’ or as it has more commonly become to be known as the ‘fair deal loan scheme’ applies where the person in nursing home care has assets including land and property, and they are a contribution to the cost of their care. The person availing of the Fair Deal scheme may choose to delay paying for their care during their lifetime and defer payment until after their death, using their assets as security for the deferred loan. The person in nursing home care must provide written consent to have a Charging Order registered against their asset when choosing to defer the cost of their contribution toward their care. The Charging Order is a simple type of mortgage which secures the money that the Health Service Executive (HSE) loans to them in the form of deferred payment. The HSE pays the full cost of care to the nursing home on behalf of the person in nursing home care, and the person’s contribution is repaid at some time in the future. When the loan is due to be repaid, the HSE informs Revenue who then collects the loan on their behalf. During the administration of all deceased estates, it is mandatory to enquire if there is any repayment due to the HSE.
- HONOUR THE STRICT RULES OF VALID WILL MAKING
Wills and the contents of a will are challenged for a variety of reasons, but the most common grounds are:
1. The Lack of Due execution of a will in the signature by the person making the will in the presence of two witnesses, all three being at the same place, at the same time.
2. A person must have the mental capacity to make a will and be of ‘sound disposing of mind ’ to make a legal and binding will.
3. If a beneficiary named in the will becomes a witness to the will-maker’s signature then that beneficiary cannot inherit under that will. Two independent witnesses are necessary so my advice is ‘Thou shalt not make a homemade will’ as these simple errors are too easy to make.
When you set about buying ‘fill in the blanks pre-printed’ wills in a shop, you don’t know what you don’t know, and it is all too easy to make an error. Homemade wills increase the risk of someone’s challenging your wishes after death.
- LET NOT THE STATE INHERIT YOUR ASSETS
The Succession Act states that if someone dies without a will and there is no one to take it under the rules for intestate estates, then the state ‘shall take the estate as the ultimate intestate successor ‘. However, the Minister for Finance has the power to decide in favour of a person upon such terms, including or not including the payment of money, ‘having proper regard to all the circumstances of the case ‘and pass the estate to them.
Cahir & Solicitors has applied successfully under the Act for a person close in proximity to the deceased but not related in blood. The application is fair and transparent, and the state will review the merits of the case and propositions in favour of a person that should inherit over the state in an intestate estate. However, this lengthy process is avoided by making wills.
Bachelor farmers who are undecided as to how to make wills and whom to leave the farm to, should pay particular attention. Not making a will leaves your holding open to being inherited by more than one person and divided between all your next of kin. Giving one too many means the farm is at risk of being sold!
- THOU SHALT UPDATE YOUR WILL IN AGES AND STAGES
Every stage and age bring with it a different consideration for the passing of your assets to your next of kin. There are many reasons to review and update wills and other estate planning documents.
For instance, let’s say you’ve found the love of your life and you want to include them in your will and estate plan, either before or after marriage. Now is the time to update your will.
Have you had a new baby or adopted a child? Are you going through a divorce or separation with the former love of your life? Have you bought or sold a significant or valuable asset? Are your children now over 18 years of age? Sometimes you need no reason to review your will every 5-8 years.
- YOU SHALT ATTEND A WILL CONSULTATION AND PLAN AHEAD
Act a nonverbal is the famous Latin phrase ‘Actions, not words.’ I ask you to consider the most essential will making commandment of all. Thou shalt make a will. Don’t underestimate the significance of consultation and having a sounding board for all the making of wills. Every week we meet people that have put off making wills or a plan, discussing the relationships between potential beneficiaries, worried about how to make challenging decisions because someone may be offended, be upset. You have wisdom. You have personal wishes. So go ahead and make your will and do what you want to do with your assets.
As Steve Jobs said “Don’t let the noise of others’ opinions drown out your own inner voice. And most important, have the courage to follow your heart and intuition ‘.