Do I Need a Solicitor when Making my Will?

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The importance of getting legal advice when making your will was highlighted in a 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 was not clear 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, Judge Gilligan declared the will void.  The entire estate fell into intestacy leading to a situation where Mrs O’Donoghue took the entire estate.

Mr Justice Gilligan said the making of a last will and testament is one of the most important tasks people face but is unfortunately often approached without proper consideration. A properly drawn up will, prepared with legal advice, should ensure that a testator’s wishes would be fully complied with.

Where there is doubt about a will, the court’s task is to determine the 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.

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