PITFALLS OF THE HOME MADE WILL
The term "home made" is usually synonymous with more wholesome, better and healthier than the commercial alternative. Not so with home made wills.
When making a will it is of the utmost importance that the will is properly drafted to clearly reflect the intentions of the person making the will. It is also important that a testator knows and understands the limits of what he or she can effect in the making of the will. For example a will or part thereof may fail if a testator attempts to impose an unlawful condition on a beneficiary.
It is also critical that the formalities required to make a valid will are complied with. For example the will must be signed at the foot or end thereof by the testator in the presence of two witnesses.
For these reasons it is not advisable to make a will without the benefit of legal advice.
The 2011 High Court case of O'Donohue -v- O'Donohue springs to mind.
In 2001 the late poet and philosopher John O'Donohue made a will just before he left for a tour of Australia. The will was handwritten and made without the benefit of legal advice.
In the will Dr. O'Donohoe wrote that he was "leaving all my worldly possessions" to his mother Josie "to be divided equally and fairly among my family with special care and extra help to be given" to his sister Mary.
The will also stated that gifts of money were to be given to a number of other persons.
John O'Donohoe died suddenly in 2008.
The case came before Mr. Justice Paul Gilligan in the High Court. It was noted by the court that an earlier will had been made by O'Donohue in 1998. The 2001 will was signed by O'Donohue and witnessed by his mother Josie and one of his brothers; two of the proposed beneficiaries.
Beneficiaries who are witnesses to a will cannot take under the will. However, the formalities for making a will had been deemed to have been complied with and therefore the 2001 will was the correct document to have regard to and not the earlier 1998 will.
The court was asked to determine Dr. O'Donohue's wishes in so are as this was possible.
The court determined that Dr. O'Donohue intended to benefit a defined group of people. However, the manner in which the estate was to be divided between the persons in that group was " significantly less clear".
Mr. Justice Gilligan said that he was "unable to decipher the exact meaning " of the will. As a result the court concluded that the terms of the will rendered it void for uncertainty. Therefore, the entire estate devolved in accordance with the rules of intestacy. As Dr. O'Donohue died a bachelor without issue the entirety of his estate passed to his mother.
There is no room for poetic licence when making a will.
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