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Advice and Terms
This website is designed to help you prepare your Will, which should include a charity donation to the DSPCA. Your will is one of the most important documents you will sign in life, so it is important you understand what it is you are signing.
You will need to appoint at least one executor in your will, and we recommend two. An executor looks after your affairs and administers your estate after you die. Please give strong consideration as to who you would like to appoint as your executor(s).
You can leave specific gifts to individual beneficiaries or a group of beneficiaries. Please ensure you identify each beneficiary clearly so there is no ambiguity as to who you are including.
Please ensure you consider all those who may appear to be entitled to benefit from your estate. Should you then decide not to include someone, it may lead to litigation after your death, so please read the general advices in 3 & 4 below.
Should you be considering such action, please contact Cosgrove Gaynard on (01) 613 9191 to discuss this further.
A gift to the DSPCA or any other charity can be set out in your will, and we would generally advise that a receipt clause be inserted stating that an appropriate officer shall be sufficient receipt to your executor.
Please ensure you fully consider the extend of your assets/ estate. Any assets owned jointly with another person will pass to them by survivorship.
Have you assets abroad? If so please contact Cosgrove Gaynard (01) 613 9191 to discuss this.
Are any of your assets subject to a charge? If so contact Cosgrove Gaynard solicitors as you will need to specifically confirm whether they are to inherit subject to the loan or whether the loan will first be discharged from the estate.
After you have set out specific gifts in your will, a residuary clause is included which covers the balance of your assets not already specifically bequeathed. You will have to name further beneficiaries under this clause. Again please consider the extent of your assets so that you know exactly what is covered in the residue of your estate.
Do you have young children?
If ‘Yes’, you will need to consider appointing guardians. You will also need to consider inserting a trust into the will should you pass before they reach the age of majority. In this regard you will require specific trust advice. Once again, please contact Cosgrove Gaynard on (01) 613 9191 to discuss this further.
Are you on medication/ receiving treatment / suffering from a condition which would be considered or could be claimed to affect your ability to make a will?
If yes please contact Cosgrove Gaynard.
Do you have specific funeral wishes?
If yes contact Cosgrove Gaynard solicitors to have these included in your will.
Inheritance tax advice
It is advisable that full taxation advice is obtained regarding the resulting inheritance tax of beneficiaries prior to executing a will. Should you require advice
- Status of childrens Act 1987
- Rights of spouse
- Rights of children . Section 117 Succession Act – Children:
- Section 98 of the Succession Act.
A clause should be inserted into your will to confirm that you do not want any gift during your lifetime to a beneficiary to be accounted for in the distribution of your estate. If such a clause is not included then any advancement to a beneficiary during your life is deemed part of their inheritance.
Again a clause can be inserted into the will to confirm this does not apply. (Explanation of relevant Provisions of Status of Children Act 1987 as they relate to “non-marital” children: The position of non-marital children (previously often termed “illegitimate children”) was altered by the Status of Children’s Act 1987 which provides children born outside marriage with equal rights to those born inside the institution of marriage. The Testator/Testatrix has a “moral obligation” when drafting his/her Will to make proper provision for his/her children, and non-marital children are included. If a deceased’s child, or non marital child, is of the view that proper provision has not been made for him/her, then he/she can apply to the court for relief, under Section 117 of the Succession Act 1965).
When one makes a Will, it is important to note that your surviving spouse will, in any event be entitled to a “legal rights share”. The legal rights share (Section 111 of the Succession Act 1965) means that the surviving spouse has a statutory entitlement to –
half of the deceased’s spouses estate if there are no children.
One third of the deceased’s spouses estate if there are children.
If under the terms of the deceased’s Will, the surviving spouse is not at a minimum given these shares, then he/she will have a right to challenge the Will in the courts, should he/she decide to exercise that right.
If Separated or Divorced, has there been an official and valid extinguishment of your former spouses succession rights, which your former spouse has agreed to. It should be noted that if such an order is not made an ex partner is still entitled to apply for this legal right share.
Also note if a spouse obtains a divorce after making a will, the will is not automatically revoked by the divorce. Under the Family Law (Divorce) Act 1996, s 18(1), a divorced spouse who has not remarried can apply to court for provision to be made for him or her out of the estate of the deceased former spouse unless an order under Section 18(10) of that Act had been made at the time of the divorce. There are similar provisions in relation to separated spouses under the Family Law Act 1995, s 15A(10).
(1) Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.
(2) The court shall consider the application from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.
(3) An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy
(4) An order under this section shall not be made except on an application made within twelve months from the first taking out of representation of the deceased’s estate.
If one of your children predeceases you and leaves issue (marital/non-marital children) surviving, then please confirm as to whether or not it is your wish that those grandchildren of yours would take their parents (your childs) share between them or should the share instead revert back and form part of your estate and be divided equally amongst the remainder of your children then surviving?
The execution of your will is extremely important. Your will must be signed by you in the presence of two witnesses who must also be present at the same time ie all three of you must be in the room. Your witnesses cannot be beneficiaries or spouses of beneficiaries under the will. If they were, the gift to them would be null and void.
Do not forget to insert the date.
Ensure there are no marks, staple marks or paperclip marks on the will which could be queried by the probate office.
The above are vitally important to ensure your will is admitted unchallenged to probate.
You should firstly ensure your executors know where your will is stored.
Consider where you would like to store your will i.e, solicitors office, bank, at home, etc. Cosgrove Gaynard can also store your will in their fire-proof safe free of charge if you so wish.