MyVita can assist you in drawing up a will or you can hire a solicitor to help you. For a will to be legally valid, the following rules apply:
- The will must be in writing
- You must be over 18 (if you are or have been married you can be under 18)
- You must be of sound mind
- You must sign or mark the will or acknowledge the signature or mark in the presence of two witnesses.
- Your two witnesses must sign the will in your presence
- Your two witnesses cannot be people who will gain from your will and they must be present with you at the same time for their attestation to be valid. The witnesses' spouses/civil partners also cannot gain from your will.
- Your witnesses must see you sign the will but they do not have to see what is written in it.
- The signature or mark must be at the end of the will.
The format of the Will
You do not have to have your will in any set format. However, it is important that the will has the following:
- Your name and address
- A statement that says you revoke or disown all earlier wills or codicils, such as "I hereby revoke all former wills and testamentary instruments made by me and declare this to be my last will and testament".
- A clause or section of your will that appoints one or more executors, or people who will carry out your wishes in your will after you die, and stating these executors' names and addresses.
- A residuary clause, which is a section in your will that sets out how property not effectively dealt with in the will, should be distributed. This is important because specific bequests, such as "I leave x.. to Seán Murphy" can fail (be considered invalid), and then revert to the residue to be decided by this residuary clause. Your residuary clause could say that anything not covered in your will would be a gift or legacy to someone, like "The remainder of my estate I leave to my daughter, Mary".
- Your will should be dated and signed by you and your witnesses. Usually, these signatures are underneath a line in the will that states "Signed by the testator in the presence of us and by us in the presence of the testator". This statement is called "an attestation clause". An attestation clause is not a formal requirement of a valid will, but it is advisable to include it in your will as it constitutes evidence that your will has been validly executed.
What if the testator in unable to sign or make a mark?
If you are unable to sign your will due to ill-health or illiteracy, it is acceptable for you to sign your will by means of a mark.
If you are physically disabled to the extent that you are unable to sign or mark your will, it is possible for you to direct an agent or representative to sign your will for you. Your agent must sign the will in your presence and on your direction and your two witnesses must be present. You then adopt this signature as your own.
If you are physically disabled to the extent that you are unable to sign or mark your will, it is possible for you to direct an agent or representative to sign your will for you. Your agent must sign the will in your presence and on your direction and your two witnesses must be present. You then adopt this signature as your own.
The sound mind requirement
In order to make a valid will, you must not only set out your wishes in a written and witnessed document, but you must also have, in the eyes of the law, the mental capacity to do so. This means you must make your will with "understanding and reason" and not be suffering from mental conditions such as delusion, insane suspicion or aversion.
It is your mental condition at the time you made your will is that legally relevant. If you suffer from any mental disorder, it is important that evidence is left with your will (for example, from a doctor) that proves you were mentally competent at the time you made the will. Otherwise, your will can be open to challenge.
Your will can also be challenged on the basis that you were acting under pressure or undue influence when you made it so it is important that you get independent legal advice and not use the services of a solicitor of any potential beneficiary of your will.
It is your mental condition at the time you made your will is that legally relevant. If you suffer from any mental disorder, it is important that evidence is left with your will (for example, from a doctor) that proves you were mentally competent at the time you made the will. Otherwise, your will can be open to challenge.
Your will can also be challenged on the basis that you were acting under pressure or undue influence when you made it so it is important that you get independent legal advice and not use the services of a solicitor of any potential beneficiary of your will.