What a properly made will requires
Formal validity is mechanical but unforgiving: the Succession Act requires the testator's signature made or acknowledged in the presence of two witnesses present at the same time, who then sign in the testator's presence, and a beneficiary or a beneficiary's spouse who witnesses loses their gift. Substantive validity requires capacity, the testator understanding the act, their property and the claims upon them, and freedom from pressure. Careful practice builds the proof while building the will: instructions taken from the testator alone, capacity considered and, where age or illness suggests it, medically confirmed, and a full attendance note recording who said what, the file that decides most later challenges.
Providing for spouse and children
A will is drafted against the statutory entitlements described elsewhere on this site: the spouse's legal right share that no will can defeat, and the section 117 jurisdiction under which any child can test the provision made. Good drafting anticipates both, providing for the spouse in a form worth electing for, recording the reasons for unequal treatment of children and the lifetime provision already made, a contemporaneous memorandum of reasons is modest work that does heavy service in later litigation, and structuring gifts so that the plan survives the statutory claims it may face rather than shattering on first contact.
The farm succession will
The farm will is its own genre. It must identify the successor and carry the holding to them intact; provide for the other children without loading the land with more money than it can earn; secure the surviving spouse, commonly through rights of residence, support obligations or a life interest, without sterilising the farm for a generation; and mesh with the lifetime transfers, partnerships and scheme arrangements already in place. It should be reviewed whenever the facts change, a marriage, a child returning to farm, land bought or sold, because the most litigated farm wills are the true wills of twenty years before the death. The tax architecture around farm succession is decisive to the plan and is a matter on which specialist tax advice should be obtained alongside the drafting.
Keeping the will alive
A will is revoked by marriage except in limited circumstances, is not revoked by separation or divorce, though divorce changes the statutory landscape around it, and silently decays as executors die, beneficiaries predecease and assets are sold. The maintenance discipline is simple: review on every major life event and periodically regardless, store the original safely with the drafting solicitor, tell the executors where it is, and keep a schedule of assets alongside it so the estate can be assembled without archaeology. This practice offers exactly that periodic review to its will clients, because the cheapest probate is the one whose paperwork was right before it started.
Frequently asked questions
Does marriage or divorce revoke my will?
Marriage generally revokes a will unless it was made in contemplation of that marriage. Divorce and separation do not revoke a will, which is precisely why wills should be reviewed immediately when a marriage ends.
Can I leave a child out of my will?
You can, but any child may apply under section 117 claiming a failure of moral duty. Recording your reasons and the lifetime provision already made significantly strengthens the will's position if tested.
Where should my will be kept?
The signed original should be held securely, typically by the drafting solicitor, with your executors told where it is. Lost originals cause serious difficulty, and copies are not a substitute without court involvement.
To discuss a matter in confidence, contact Richard O'Shea at Mary Molloy Solicitors, 2 Rose Inn Street, Kilkenny. Arrange a consultation. This page is general information, not legal advice.