Q. I’ve been asked to witness a will but I’m worried about how hard it may be to administer.
The person leaves a portion of his estate to “my nieces and nephews”, but names only some of them. He uses legal phrases in a way that seem contradictory or may leave the will open to dispute. Wording about other beneficiaries creates ambiguity.
I’ve expressed my reservations about the will but he has reacted quite negatively. Another family member is the executor.
I fear the wording may lead to dispute. What can I do?
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A: A witness to a will has no responsibility for how the will is drafted, says Andrea McNamara, director, private client law at EY Ireland.
“The witness’s role is limited to signing the will and witnessing the testator [the person making the will] sign the will,” says McNamara.
“It isn’t incumbent on the witness to raise queries but if they don’t feel comfortable, they could certainly refuse to act as witness.”
Any difficulty created by a will falls to the executor to deal with. As family members are involved, the reader is no doubt trying to see off trouble.
“If there are ambiguous phrases in the will, then it’s going to make the executor’s role much more onerous and time consuming,” says McNamara.
While she can’t give a definitive opinion without seeing the will, McNamara says if the person making the will says they intend to leave assets to “my nieces and nephews”, and names specific people, but excludes some nieces and nephews, the phrasing may prove problematic.
“I would suspect that a court would determine it is just those individuals named who are entitled to benefit because he specifies them, but it is not without doubt,” she says.
“If there is doubt as to the meaning or interpretation of a clause in a will, it’s possible to bring what’s called a ‘construction suit’ in the High Court, seeking to determine what the meaning, or legal effect, of a particular clause is and therefore how assets in the will to be bequeathed by that clause are to be distributed.”
But this means legal fees and delays.
“The whole estate is paused. Legal fees would have to be paid out of the estate, depleting it, and that’s not a situation you want to be in.”
It falls to an executor to steward the claim and engage barristers. “I’m sure the executor would likely be coming under pressure from beneficiaries who want to inherit their portion,” says McNamara.
Conversations the reader had with the person making the will could be very important as evidence, says McNamara.
So, what can the reader do? They could suggest to the person making the will that a solicitor looks at it to ensure the will is doing what he intends it to do, says McNamara.
An intervention by the executor, however, may carry more weight.
“If the executor has been asked to act, I would say s/he has more power in saying, ‘I really think you should get this checked over by a solicitor because I’m not comfortable acting if there are ambiguous clauses in the will and this could end up being very complicated after you die’,” says McNamara.
An executor will require the Probate Office to issue a grant of probate giving them legal authority to administer the estate, paying out assets to those entitled to them according to the will.
But there needs to be no ambiguity about who is entitled to inherit, says McNamara.
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“If the testator thinks a phrase has one meaning but actually it has a completely different legal effect, their wishes may not be fulfilled and there could be a different outcome to what they intended.”
While individuals can make a home-made will, as the subject of this reader query appears to be doing, McNamara cautions against it.
Under the Succession Act, there are strict rules around the signing and witnessing of wills, and if a will doesn’t comply, it won’t be valid, she says. For example, the testator must sign the will in the presence of two witnesses, so the witnesses must be present at the same time to see the testator sign it.
Then a witness must sign the will in the presence of the testator.
“That’s usually where home-made wills fail, because a testator might think, I need two witnesses, I’ll go next door for this neighbour to witness it, and then I’ll go to the other neighbour to get them to witness it, but they both witness at different times,” says McNamara.
“Then the estate would be administered in accordance with the rules of intestacy, which could be contrary to what they want.”
Separately, a beneficiary should not witness a will because if they do, any legacy to that beneficiary is void immediately, she says. Equally, if the spouse of a beneficiary witnesses a will, any legacy to that witness’s spouse is also void.
If you want to ensure your will is valid, consult a solicitor, she advises.
The name of the reader who submitted the question is not being published to protect the identities of those involved.
Please send your legal queries to Joanne Hunt, Ask the Lawyer, The Irish Times, 24-28 Tara Street, Dublin 2, or by email to joanne.hunt@irishtimes.com with a contact phone number. This column is a reader service and is not intended to replace professional advice
