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In this edition of the paper, Romaine Scally, Principal in the Firm of Romaine Scally and Co, Solicitors, deals with the question of Wills. As always please send your queries to Romaine Scally, Solicitors, Main Street, Tallaght Village, Dublin 24. Telephone 4599506, Email – legal@scally.ie Question – My Uncle died a bachelor leaving a small estate including his house. He appointed me as his Executor and sole Beneficiary. As the estate is not substantial, I am going to apply to take out the Grant of Probate myself. Will this pose difficulties because I am resident in the UK? A – Firstly, we are sorry to hear of the death of your Uncle. We also note that he entrusted you with the administration of his estate which is of course a big responsibility. Unfortunately however, as a non-resident executor, you cannot apply to take out a Grant of Probate yourself. You will need to instruct solicitors within this jurisdiction. In addition, as a non-resident executor, your solicitors are legally obliged to make your tax returns on your behalf and pay the appropriate Capital Acquisitions Tax (CAT). Without any knowledge as to the value of the estate, we cannot advise you fully in this regard. However, as a class B beneficiary (nephew) your tax free threshold in this present tax year is €32,500.00. Thereafter, tax is payable at 33% of the gain less the cost of the administration and all other expenses including the funeral expenses, etc. We suggest that you make an appointment with a solicitor or at least a telephone consultation with a view to progressing matters in relation to your late uncle’s estate. Question – My Grandmother has prepared her own Will and wants myself and a neighbour to witness it. Is this legal? She said that we are not to read the contents when we witness her signature but I don’t know if this is appropriate. I would appreciate whatever guidance you can give. A – It has to be said that on the whole, Wills made by Testators themselves can be quite dangerous as if they are not valid then, the Will generally collapses and the estate proceeds as an intestacy (no Will). Your grandmother should be encouraged if at all possible to go to see a solicitor or perhaps to have a solicitor call out to her and prepare a Will based on her instructions. Many solicitors will agree to do this without difficulty or indeed any additional charge. However, if your grandmother is insistent and wishes to go ahead with her own Will then, there is no reason why you cannot give whatever assistance is required. Remember however that if you witness the Will, you cannot also benefit from that Will. You do not have to read the Will. There is no legal requirement to read the contents of the Will for your signature to be valid. However, you need to be direct with your grandmother and let her know that if she has named you as a beneficiary in the Will then, you cannot witness the signature and to do so would result in the gift to you being void. Similarly with a neighbour in case your grandmother has decided to leave her neighbour something small in the Will. These are the reasons why people should really have a Will professionally prepared by a solicitor. In any event, this might be your opportunity to discuss the matter in some detail with your grandmother and explain to her that she might be embarking on a dangerous path if she is to get beneficiaries whom presumably she wants to benefit, to witness the Will thereby disinheriting them. On the other hand, she may not have included you or your neighbour as beneficiaries and, this being the case, there is no difficulty about you witnessing the Will. I would also caution you that, although you do not need to know the contents of the Will (apart from clarifying that you are not a beneficiary), you do need to be in the same room as the other witness at the time when your grandmother signs the Will. You must both witness your grandmother’s signature together and then witness the document in the presence of all three of you. We hope that this has been helpful.
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