I want to change my will quickly in case I fall ill. Do I need a lawyer?

Q&A: Dominic Coyle

Legacy issues: if a will is not drawn up in a particular way, it can be declared invalid. Photograph: Getty

Legacy issues: if a will is not drawn up in a particular way, it can be declared invalid. Photograph: Getty

 

Do you know how I stand if I make a new will? My solicitor is now not open so I am very concerned. This needs to done quickly, just in case. I have a completed will and was thinking about just handwriting the next one with all the correct wording (there will be changes) so this is why I need to do this now.

I do not want to discus with my family but is in their interest that I make this new will. Can I do this and is it legal? Has it also to be done by a solicitor?

I am a pensioner and they charged a lot for not a lot.

Ms MS Donegal

Can you? Yes, providing . . . Should you? Well that’s a different matter entirely.

There’s something about wills that makes people procrastinate. And it’s not just Irish people. Study after study shows a depressing number of people in many different countries long-finger the making of a will or, as in your case, updating it.

And then something like our current reality hits. To be fair, nobody foresaw a global coronavirus pandemic but it could have been anything – such as a debilitating stroke maybe, or any other number of catastrophic ailments or accidents. The end result is the same: the changes you wish the make are now that much more difficult.

The reason why it is important is that it is generally good practice to have a solicitor in on the act. I know you say the cost last time round was substantial and you felt you saw little input for it. But the reason you go to a solicitor is because this is a legal document and, if it is up for debate later on, you won’t be around to explain what you really meant in drawing it up. What might seem like an insignificant wording of a phrase or a sentence could, in legal terms, have an entirely different meaning and outcome than you intended.

Critically, you must sign the will and this must be done in the presence of two witnesses

And legal is the key here because, if there is a dispute – and remember anyone can dispute a will if they feel them have a claim to part of the estate or have not been adequately provided for – it will come down to the precise legal determination of what the written words mean.

Having said that, must you have a solicitor to draw up a will? No. There is no legal requirement to do so. People do and have drawn up wills without incident in the past – but, equally, homemade wills have led to discord, distress and legal cost when things do not turn out as people expected or intended.

A second issue is that if a will is not drawn up in a particular way, it can be declared invalid. In that case, the most recent valid will is the one that is followed: if there is no will, you go into the more uncertain scenario of intestacy.

At least you do have a will made, which is important. If all goes wrong and the will you propose to make is found not to be valid, the provisions of your current will will be followed. It won’t reflect the changes you wish to make but it is likely closer to your wishes than the absence of any will at all.

Valid will

So, whether you go through a solicitor, or do-it-yourself, what must you do to draw up a valid legal will?

First, it must be written – handwritten or typed is immaterial. Secondly, you must be over 18 or have been married which is not an issue for you as a pensioner.

More importantly, you must have the capacity to make a will ie, be of sound mind. You come across clear as a whistle to me but this is one of the areas where a will can be challenged. Having a solicitor involved lessens this risk as they clearly would not wish to be involved in drawing up a will for anyone they suspect does not have the capacity to understand what they are doing.

A will is not just about who gets what. With the right advice, you can ensure that your legacy brings the maximum benefit to those you love. Photograph: Tetra Images/Getty Images
A will is not just about who gets what. With the right advice, you can ensure that your legacy brings the maximum benefit to those you love. Photograph: Tetra Images/Getty Images

Critically, you must sign the will and this must be done in the presence of two witnesses.

At a time when we are battling the Covid-19 virus, being exhorted to practise social distancing and, for those of us over the age of 70, cocooning, this can get complicated. The president of the Law Society of Ireland, Michelle O’Boyle recently instructed solicitors that they can witness the signing of a will through a window rather than being physically in the same room as the person.

The same rules must apply even where the witnesses are not solicitors. You can get anyone to witness a will as long as neither they, nor their spouses or civil partners, benefit under the will – and they are of sound mind.

The witnesses also have to sign the will as witness in each other’s presence though the Law Society is happy that they can do so while preserving social distancing – and with their own pens – to reduce any risk of infection.

So, technically, yes, you can handwrite a new will and have it witnessed and it will become valid.

Mind you, you will need to store it somewhere that it can be found when you die. If no one knows it is there, it’s the same as if it had never been drawn up. After all, your solicitor will presumably have the current will and, if no one tells him or her otherwise, they will presume it is the most recent valid will.

Torn apart

This column is all about money sense so I’m not in the habit of suggesting people spend unwisely. What I can tell you is that I have seen far too many examples of families torn apart by wills to leave anything inadvertently to chance.

It is clearly not impossible for solicitors to make a mistake but having one involved reduces the chances of errors dramatically. In drawing up a will, they will ensure you get to see a draft first and have a chance to read through it before signing, so it does hugely reduce the chance of a costly inadvertent error, or simple forgetfulness in the moment.

Now – at least as long as this pandemic continues – communication between client and solicitor can be done by phone, Skype or email

And, if there is one good thing about Covid-19 it is that lawyers have been advised by the Law Society that they can abandon the stuffy general practice of calling people “to attend” at their office to “take instructions” and to read drafts of wills – an environment where no one but the lawyer feels comfortable. Now – at least as long as this pandemic continues – communication between client and solicitor can be done by phone, Skype or email, and drafts of the will sent by email.

The one bit of your query that disconcerts me slightly is where you say your solicitor has shut down for the duration of the pandemic. That sounds odd: the office may be closed but the solicitor(s) should be available by phone or email and there should be a message to this effect on their voicemail. It might be worth trying again.

– Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice. No personal correspondence will be entered into.

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