The High Court was recently asked to determine the validity of a one page will drafted, without the benefit of legal advice, by the deceased poet John O’Donohue. Although it was apparent from the will that the deceased’s general wish was to benefit his friends and family, his personal representative could not determine how to properly divide the estate due to the vague language used. An application was made to the High Court for assistance.
Under Irish law the court has the power to construe or effectively explain a will, but unlike in some other common law jurisdictions the court cannot make a new will. The judge regretted that it was not possible for him to insert a simple clause which would provide sense to the will, and in the circumstances he was compelled to declare it void for uncertainty. As a result John O’Donohue’s estate passed entirely to his mother in accordance with the laws on intestacy.
Delivering his judgment, Mr Justice Gilligan stated:
“The making of a last will and testament is one of the most important tasks most people face and unfortunately it is one often approached in haste and without due consideration for its effect. A primary purpose of a will is to make a definitive statement regarding the disposition of a person’s assets on the event of their death. A properly drawn up will, prepared with the benefit of legal advice provided by a solicitor, should ensure that the testator’s wishes for the disposition of their estate will be fully complied with.”
The judge also lamented the fact that the deceased made the “classic” error of having the will witnessed by two of the intended beneficiaries. Even had the will been valid, the legacies to these beneficiaries would have failed.
The case provides a clear example of how even apparently straightforward wishes can be frustrated when a will is drafted without the benefit of legal advice. As the judge stated, it “unfortunately provided an illustration of exactly how a person should not make a will’.
Contributed by Nora Lillis and Tina Curran.
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