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Why make a will and testament?
Do I need to consult a solicitor
to make a will?
How do I contest a will?
Why make a will and testament?
Many people wonder if it is necessary to make a will and testament
with a solicitor and what difference that will and testament actually
makes. Legislation already provides for the division of a person’s
property after death, regardless of whether you have made a will
and testament or not. This legislation is fair and assumes the property
is to be divided amongst a deceased person’s next of kin with
a specific format. Making a will and testament however makes a difference
for the following reasons:
- Creating a will gives a person the opportunity to decide where
their property should go after their death and who should benefit,
instead of it simply being distributed in accordance with legislation.
The property division is still be subject to legislation (for example
a spouse is entitled to elect to take their ‘legal right share’
of a deceased person’s estate regardless of what a person
has stated in their will) but generally speaking, creating a will
allows a person to decide how their property should be distributed
after their death.
- A simple will is good planning and practical care for your family
and those close to you. For example, if you have young children,
it gives you the opportunity to decide who would care for them in
case something happens to you and/ or your spouse or partner. A
simple will can limit confusion amongst family members. Your last
will is possibly the final communication you will have with persons
close to you. Writing a will therefore can offer comfort to persons
close to you after death as it can show that practical measures
were taken by you to care for and consider those close to you.
- An executor of a will has charge and responsibility over a deceased
person’s assets from the time of their death and does not
have to wait for a ‘Grant of Representation’ to issue
before they are appointed. Where there is no will however, the assets
of the deceased person vest in the State until such time as the
Grant of Representation is extracted. A simple will therefore makes
practical sense therefore so that the assets are immediately under
the care
For explanation purposes please note a Grant of Representation is
the term used to describe the certificate which issues from the
Court authorities in Ireland allowing a person to distribute the
assets of a deceased person to those who are entitled to it. Where
there is a will, the Grant of Representation can also be described
as the ‘Grant of Probate’. Where there is no will, the
Grant of Representation can also be described as the ‘Grant
of Administration’. A Grant of Representation can be either
a probate situation or an intestate (no will) situation.
For further information please contact Susan McLoughlin by email:
susanmcloughlin@msmandco.ie
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Do I need to consult
a solicitor to make a will?
Many people ask whether it is necessary to consult a solicitor for
writing a will in the first place. The simple answer is yes, but
of course we are going to say that! In our defence however, we would
emphasise that writing wills is more complex than the simple will
might look. Your solicitor will have the benefit of considerable
expertise and knowledge of the legislation, and that legislation
is very detailed. We have a duty to consider all scenarios, know
all pitfalls and tailor your last will to your needs. The simple
will itself is deceptively basic looking. This is very deliberate,
as the more simple the will, the better. However the background
considerations for creating a will are extensive. Our expertise
is two-fold. One the one hand we have a duty to know the legislation,
the tax implications and the different scenarios which could arise.
On the other hand, we have a duty to use that knowledge and tailor
it into straightforward and clear language for a simple will template.
We will therefore discuss with you such issues as legal right share
for a spouse, practical considerations for the care of your children,
joint property, capital acquisitions tax and much more. So you will
see that there is more to writing wills than meets the eye, and
there is a reason for your trained professional and the importance
of their advice. It is difficult to foresee problems and a basic
will is a document that potentially is made today but not actually
used for many years to come. Therefore, it needs to see into the
future. Our experience in the area of creating a will means we consider
much more in terms of background and consideration for that basic
will template.
Wills and estates are the highest areas of liability for a solicitor
themselves in terms of professional conduct. The reason for this
is that the areas are so onerous in terms of our expertise. Therefore
your solicitor must be adept and up to date on the important legal
and tax considerations in these areas. At Molloy Seymour McLoughlin
Solicitors we are constantly striving to maintain these high standards.
We pride ourselves on careful attention to detail at all times.
All our wills are printed on laser printers which have a better
proven record for lasting over time, and once executed the original
document is scanned on our system and stored in fire proof safes
for safekeeping. Storage and care of your will is also an important
consideration for our office, as the essence of a will is that it
is intended to last longer than any one of us. You will see therefore
that there are many important aspects which we consider as your
solicitors and why you should consult us in making your will. But
yes, we are biased!
For further information please contact Susan McLoughlin by email:
susanmcloughlin@msmandco.ie
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How do I contest a will?
Contesting a will is often a query raised by a family member who
may be of the opinion that unfairness exists with regard to how
a deceased person has dealt with their estate or with regard to
how other family members have been treated in comparison. Sometimes
a client will simply need guidance as to whether a will could be
contested and what the options are. Disputes regarding wills can
create huge animosity amongst family members and considerable upset
for the person feeling aggrieved. We try to take a pragmatic approach
to all situations, and to assist and guide our clients through these
difficult matters which can arise. We approach such matters with
understanding and compassion at all times.
Generally there are 4 main grounds for contesting a will:
1. The will is invalid, i.e. it does not fulfil the required legal
formalities, for example it has not been witnessed properly;
2. The person making the will was not capable of understanding the
document at the time it was made, or there is a question mark as
to whether undue influence or pressure was put on them at the time;
3. The will does not take into account prior agreements, debts or
promises made;
4. The will fails to make proper provision for a spouse or child
Each case for contesting a will needs to be examined by a solicitor
individually on its own merits. There are many legal aspects and
factors to take into account. Law firms will be able to guide you
through these important issues and guide you as to whether you have
reasonable grounds or concerns to challenge a will.
For further information please contact Susan McLoughlin by email:
susanmcloughlin@msmandco.ie
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