Wills in Northern Ireland

Making a Will can be a daunting task, as very few of us want to consider a time when we are gone. It is common to find people ‘putting off’ making a Will, and often people intend to make a Will but never get around to it, leaving their family and friends to pick up the pieces during an already sorrowful time following the death of a loved one. The best way to avoid this happening is to have your Will drafted, outlining your wishes, distributing your property as you see fit.

Testamentary Capacity

There are a few formalities to be followed in order to make a valid Will.

First and foremost, you must be capable of making a Will — this is known as ‘Testamentary Capacity’. Your solicitor will assess whether you have the mental capacity to make a Will — it is a serious ethical breach to execute a Will when the testator does not have the capacity to do so. In some instances, it may be necessary to get a medical report outlining your capacity to make a Will. Once your capacity has been established, it is possible to proceed with outlining the contents of the Will.

The Contents of the Will

You will need to consider all the property you own, where that property is located, who your closest living relatives are and why you have (or haven’t) made a gift for their benefit in your Will. This is important to consider, especially since anyone who you do not make provision for may be able to claim a portion of your estate if you don’t make it abundantly clear to the instructed solicitor why you have not included them in your Will. It is a common misconception that making a small ‘pecuniary’ gift to someone excludes them from being able to claim part of your estate but this is untrue; if an individual can establish a legitimate need and can demonstrate that sufficient provision has not been made for them under the Will, they may still be able to claim part of the estate, but this can be offset if the instructed solicitor has retained detailed notes outlining your reasoning for not making provision for them.

Witnessing the Will

The Will must be witnessed by two independent people. The Will be invalid if it is witnessed by the spouse or civil partner of the testator. If a beneficiary under the Will acts as a witness to its execution, then the gift to them under the Will shall fail. If the spouse of a beneficiary under the Will attests to the witnessing of the Will, then the gift to their spouse will also fail. It is possible for an executor to act as a Witness, but any gift made to them under the Will shall similarly fail.

The legal framework of drafting a Will can be a complex issue. Whilst it is theoretically possible to draft your own Will, there is a much higher risk of the Will being executed incorrectly or giving rise to legal challenges. The best way to safeguard your future legacy is to have your Will drafted by experienced legal professionals, who are trained to avoid the common pitfalls of Will drafting which can lead to the Will being invalid or causing a partial intestacy.

Our Private Client team will guide you through every step of the process and ensure that your wishes are made clear — for the peace of mind for yourself, and the future security of your loved ones.