The rules relating to the valid execution of wills in Ireland are set out in Section 78 of the Succession Act 1965. The Succession Act provides that a will must be in writing and signed by a testator “at the foot or end thereof”. The testator’s signature must be made or acknowledged in the presence of two witnesses. The witnesses must then attest by his signature the signature of the testator in the presence of the testator. It is essential that a testator ensures that anyone who witnesses their will is not either their spouse or civil partner or someone who benefits under the terms of the will. The current pandemic facing Ireland has introduced a number of challenges to both the execution and witnessing of a will in circumstances where keeping a social distance is essential. The Law Society of Ireland has recently issued guidelines to execute a valid will while at all times keeping a social distance.
The pandemic has highlighted the fact that there is not in existence any way of executing a will which takes into account a person who is faced with the onset of a sudden illness and untimely death due to a virus such as COVID-19. Someone facing into the pandemic and who does not have sufficient time to make a will, is unlikely to be in a position to comply with the statutory requirements for making a valid will in Ireland. Prior to the enactment of Ireland’s 1965 Succession Act, there was in existence a privileged will which recognised wills made in circumstances where death was imminent and the testator was unable to comply with the statutory formalities ordinarily applicable to the valid execution of a will.
Privileged wills gave soldiers, sailors and military personnel a dispensation from the rules ordinarily applicable to a wills valid execution. Privileged wills were held to be valid regardless of whether there were any witnesses and a privileged will could even be made orally. Ireland has removed privileged wills from the Statute Books and they are no longer valid under Irish Law. However, privileged wills are still given statutory recognition in the United Kingdom to soldiers, sailors and military personnel provided the statutory requirements are met.
The case of Re Jones (1981) which represents the law in the United Kingdom illustrates a privileged wills operation. In this case a British soldier had been shot and while travelling to the hospital stated “If I do not make it, make sure Anne gets all my stuff”. This was held to be the soldier’s last will even though he had previously made a formal will leaving his estate to his mother. In Ireland privileged wills were given a statutory footing when in 1960 the United Nations requested Irish soldiers to serve in the Congo. It was stated in Dáil Éireann at the time that “the will of a soldier on active service may consist of a document not attested and also that a mere verbal statement of his wishes will be sufficient”.
During the Dáil debates which took place in 1964 which ultimately lead to the enactment of Ireland’s Succession Act 1965 and the rules that currently apply in Ireland, the then Minister for Justice advocated the abolition of privileged wills stating as follows:
“Julius Caesar is said to have given the privilege to his legionaries in the field. The reason was, no doubt, that a soldier on active military service was likely to be in danger of death and without sufficient time to make a formal will. Be that as it may, continuance of the privilege will no longer be justified in view of the new rules of succession……..There should be no longer any reason why a person should have a horror of intestacy, as the Romans had, or why he should be encouraged to make a hasty will.”
If since the enactment of the 1965 Succession Act in Ireland, and as the Minster stated there has been no reason why a person “should be encouraged to make a hasty will” then COVID-19 may provide an incentive to revisit this.
Should you wish to read Ireland’s Succession Act 1965, you may do so by visiting www.irishstatutebook.ie. In the event that you would like to make a will or discuss any of the above matters, please get in touch by contacting us at (01) 833 8147 or alternatively you can email us at [email protected]. Telephone and Skype consultations are available by appointment.