A recent case showing why you need a solicitor when making your will
The importance of getting legal advice when making your will was highlighted in a recent decision of the High Court relating to the will of well-known poet and author Dr John O’Donoghue.
Mr Justice Paul Gilligan ruled that Dr O’Donoghue’s will was void due to the uncertainty of its terms and meaning. The decision means that his entire €2 million estate passes to his mother under the rules of intestacy.
Dr O’Donoghue, author of the best-selling Anam Cara, drafted his one-page will in 2001. He died suddenly in 2008. His mother brought the High Court proceedings to clarify the terms of the will.
Judge Gilligan found that he was “unable to decipher the exact meaning” of the will and said that Dr O’Donoghue had provided an illustration of exactly how a person should not make a will. The fact that he did not benefit from legal advice or assistance when preparing his will was evident from the will drawn up, he added.
The will lacked clarity as to Dr O’Donoghue’s intentions. Judge Gilligan said the late poet had made the “classic error” of having the two intended beneficiaries of his will – his mother and his brother – witness the will. This had the effect of depriving both from benefitting as the law states that a witness to a will cannot be a beneficiary.
As a result of the uncertainty of the terms of the will, Judge Gilligan declared it void. As a result, the entire estate falls into intestacy leading to a situation under law where Mrs O’Donoghue takes the entire estate, the judge said.
Mr Justice Gilliagn said the making of a last will and testament is one of the most important tasks people face but is unfortunately often approached without due consideration. A properly drawn up will, prepared with legal advice, should ensure a testator’s wishes for disposition of their estate would be fully complied with.
Where there was doubt about a will, the court’s task was to determine a deceased’s wishes insofar as possible. If this is not possible, a court will declare the will void and the rules of intestacy will apply to the administration of the estate.
Our probate partner Evelyn MacKenzie-Smith, will assist you in the making of your will or advise you on any queries you may have. This will give you peace of mind – a properly drafted will ensures your estate will be dealt with according to your wishes. You can contact Evelyn on 045 431542 or email her at Evelyn.mackenzie-smith@pjf.ie. Alternatively you could use our "Do you have a case?" link at the top of this page for a no cost opinion of your case.
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