A Cautionary Tale
The last Will and Testament of the poet, author, priest and philosopher Dr. John O’Donohue was held to be void for uncertainty by Mr. Justice Paul Gilligan in December 2011. Mr. Justice Gilligan concluded that Dr. O’Donohue had “unfortunately provided an illustration of exactly how a person should not make a Will”.
Dr. O’Donohue died suddenly in his sleep on 4 January 2008 while on holiday near Avignon, France. He was highly educated and well read and was a former novice in St Patrick’s College, Maynooth where he read degrees in English, Philosophy and Theology. He later obtained a Phd in Philosophy Theology from Eberhard Karls University. Dr O’Donohue was an international best selling author and was particularly known for his work in Anam Cara.
Mr. Justice Gilligan said of Dr. O’Donohue that he was “a man of considerable learning” but despite this, he did not seek legal advice or assistance in drafting his Will.
The requirements for a valid Will under Sections 77 and 78 of the Succession Act, 1965 are:
- The Will must be in writing;
- The testator must be over 18 years or be, or have been married;
- He must be of sound disposing mind;
- He must sign his name, make his mark, or acknowledge his signature in the presence of two witnesses, present together;
- His signature or mark must be at the end of the Will; and
- The two witnesses must sign their names in his presence.
And the recommended format of a Will is as follows:
- Name and address of testator;
- Revocation of earlier Wills and codicils;
- Appointment of Executors;
- Disposition provisions;
- Residue clause;
- Date;
- Signature of the testator;
- Attestation clause; and
- Signatures of witnesses with addresses and descriptions.
Dr. O’Donohue was survived by his partner Kirstine Fleck, his mother Josie, his brothers PJ and Pat and his sister Mary. Two intended beneficiaries of the Will were his brother Patrick and his mother Mary and they witnessed his signature, contrary to the provisions of Section 82 of the Succession Act. This states that if a beneficiary or his or her spouse witnesses a Will, the gift to this witness is void. This is exactly what happened in Dr. O’Donohue’s case.
In addition, it was found that the Will was further struck down as being void for uncertainty due to the lack of clarity concerning Dr. O’Donohue’s wishes. A Will is a declaration in writing of someone’s wishes, providing for the distribution of property after their death.
As a result, Dr. O’Donohue was held to have died intestate and his estate was distributed under the rules of intestacy, in this instance, to his mother.
Irish Probate case law is littered with cases where testators’ wishes have not been complied with after their death due to the lack of certainty in their will. Therefore if, after your death, you want your affairs to be administered according to your wishes and in an efficient manner, you should seek advice and instruct a solicitor accordingly.
In this case, the Court found that a properly drawn up Will, prepared with legal advice would have ensured that the testator’s wishes were implemented.