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Wards of Court is a term very commonly used these days but what precisely is it?

Before you can give instructions to a solicitor to draft your will, in simple terms, you need to decide who gets what.

Under the Succession Act 1965, a surviving spouse has a legal right share regardless of the contents of a will.  A spouse has a legal right share of one half of her deceased spouse's estate where there are no children.  Where there are children, this legal right share amounts to one third.  In the event of a spouse dying without a will which is known as intestate, the surviving spouse is entitled to inherit everything where there are no children.  Where there are children, the surviving spouse is entitled to two thirds of the estate and the children are entitled to one third which is divided equally between the deceased's children.

A question was posed recently in the Irish Times as follows:-

Lately, there has been an increased awareness among many people of capital acquisitions tax (gift tax and inheritance tax, commonly known as “CAT”). This is partly driven by the significant increases in the CAT rate since 2009, and the gradual reduction of the tax-free thresholds/limits from the highs of 2009 to the present day.  

In deciding whether a person should make a will, it is best to explain firstly what a will is.  

In the past year, we have seen a consistent increase in the number of enquiries in relation to challenging Wills. Some of the cases require litigation, others are resolved by mediation or agreement between the parties.  One of the possible reasons for this is the challenging economic circumstances which prevail as claimants pursue value.  However the difficult financial circumstances a claimant may be in is not of itself reason in law to justify such a claim.  The claims fall into two broad categories.  The first category concerns challenging or contesting a Will on grounds of invalidity, lack of capacity, duress/undue influence, or conflict of interest of an executor. The second concerns beneficiary claims by a spouse/civil partner, or children of the deceased. Will challenges Statutory validity There are prescribed formalities for the manner in which a Will is to be signed under the 1965 Succession Act (the “1965 Act”).  This includes the requirement for the person making the Will (the testator / testatrix) signing in the presence of two witnesses with those two witnesses signing their name in the presence of the testator.  Some of the other conditions prescribed by section 77 and 78 of the 1965 Act include a requirement that the testator be over 18 years of age and be of sound disposing mind.   Capacity It follows therefore that, in order for a Will to be valid, a person must have the appropriate capacity to sign the Will at the relevant date.  The presumption of validity applies and it will be incumbent upon the person challenging the Will to assert the reasons for that individual not having capacity.  Duress and undue influence The statutory formalities provide that the testator must make a Will freely.  Therefore to the extent that there is a third party who has pressurised the testator into making a certain provision for that person or to adapt a certain structuring in their Will, such may be a valid reason to have the Will set aside.  The concept of undue influence although related is distinct.  It requires that a person who has by virtue of his relationship with the deceased significant influence over him / her and unduly exercises such influence, resulting in the Will being drafted in a certain manner to that person’s knowledge.  If a Will is declared to be invalid under any of these claims by the court, the Will shall be set aside with any previous Will being resurrected and deemed to be the last Will. Beneficiary claims

Inheritance thresholds for a child have plummeted since 2009 but there are ways to avoid or mitigate tax bills