I am the executor of the will of a friend. He is a single person with no dependents or children. His estate is substantial with a big home and lots of savings.
He has produced his own will with instructions to leave any savings and money assets, including the proceeds of the sale of his house, to be donated to his chosen registered charity. This was witnessed by two neighbours unknown to me, who have left the country (and no address or typed names were given in the will – just signatures).
Will this bequest attract inheritance tax? Can his will be challenged successfully by any of his relatives?
MB
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Home-made wills always make me nervous. They are, by nature, more prone to challenge.
Wills are very particular legal documents which seek to execute your wishes when you are no longer around to oversee the distribution of your assets. If questions arise, you are obviously not there to explain intent, so that intent must be clear and watertight from the wording of the will.
That’s why, for all that I occasionally criticise solicitors, it is in my view reckless to try to draw up a will without going through one – especially where there are either close family and/or significant assets (i.e. an amount worth fighting over). There is wording that has long been accepted in the legal world and by the courts as carrying clear meaning which would never remotely cross the mind of a lay person.
We all like to think our families, immediate or otherwise, are different, that they would never rush to ransack a dead relative’s property of certain items or challenge their will but my postbag begs to differ.
Your friend has no immediate family but there is no way you can guarantee that more distant relatives will not challenge his will. And even though there are very limited grounds on which they could successfully do so, the costs incurred would inevitably impact the amount available for his chosen charity.
Only if the wording of the will is clear and legally watertight can you have confidence it will not face challenge. To your friend’s credit, his wishes are simple – that everything go to this charity. As to the will’s wording, I have not seen it and am not, in any case, a solicitor.
But what about the witnesses – these two neighbours who signed the will but did not otherwise type or write their names or addresses, and who have now moved abroad?
Matthew Johnston of Nooney & Dowdall Solicitors in Mullingar who specialises in inheritance among other things, assures me that the witnesses are not obliged to be traceable. However, he says, they can often be required so it is good practice that they can be contacted.
Section 78 of the Succession Act 1965 covers the rules around signing and witnessing of wills, he tells me.
“In summary, for a valid will, the testator [the person who’s will this is] must sign in the presence of two witnesses, [who are] present at the same time and who must then also sign it in his presence,” Johnston says.
“The fact that this requirement has been fulfilled is usually covered by a clause at the foot of the will which states it was signed by the testator ‘in our presence, who in his presence and in the presence of each other have hereunto subscribed our names as witnesses’. The witnesses sign their names under that clause. This is called the attestation clause,” he says.
You can see what I mean about precise legal language.
If the will is signed by the testator at the foot of the will and there is an attestation clause which is signed by the witnesses, the Probate Office will admit the will to probate and issue the grant of probate under Order 79 of the High Court Superior Court Rules, Johnston assures me. “Nothing further in that regard is required. The witnesses aren’t needed.”
The issue arises, Johnston says, if the Probate Office has a query about the will, its wording, appearance, a mark on the document or an absent or incomplete attestation clause. In those circumstances, he says, it often requires an affidavit of “due execution” by an attesting witness.
“Ideally, therefore, you want a witness you can contact to swear an affidavit if required. That is the problem in this case, but only if the will is not properly drafted and witnessed or the document was marked or damaged since signing,” Johnston says.
If, for whatever reason, the witnesses cannot be traced, Johnston says Order 79 (8) of the rules comes into play.
It states: “If both the subscribing witnesses are dead, or if from other circumstances no affidavit can be obtained from either of them, resort shall be had to other persons (if any) who may have been present at the execution of the will, but if no affidavit of any such person can be obtained, evidence on affidavit shall be procured of the fact and of the handwriting of the deceased and the subscribing witnesses and also of any circumstances which may raise a presumption in favour of due execution.”
In other words, in the absence of anything else, the court may resort to handwriting analysis to be sure of intent and action.
However, if, ultimately, there is any doubt the will has been “duly executed”, the probate officer will require you to go through a court hearing to determine the will’s validity.
In relation to tax, assuming this charity is a registered Irish charity, no tax will be levied at all on the estate as everything is going to charity.
If there were a challenge and if it were successful – that’s a fair amount of “ifs” – things could change as other beneficiaries might be liable to tax based on how much they were to get and their relationship to your friend.
You use the present tense in your letter. Assuming your friend is still alive, try to persuade him to at least get a solicitor to run an eye over his will to ensure it is dotted and crossed – if only for your peace of mind and ease of its eventual execution and probate.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or by email todominic.coyle@irishtimes.comwith a contact phone number. This column is a reader service and is not intended to replace professional advice
