Making a Will for Children with Special Needs

The following information is taken from a talk by Brian Spierin, Senior Counsel, 21 Feb. 2007 – N.B. These notes are not intended to be definitive of the full legal position and should be read as a guide only. Full legal and, where necessary, financial and taxation advise should be sought when making a will.

Considerations

• Ensure your Solicitor knows the area of Probate/Succession law well.
• Before signing your will read it first and know exactly what it says and means! If anything incorrect or no understood ask for explanation.
• Take a copy for yourself. re-read when at home to make sure there are no errors that you may not have spotted when in solicitors office.
• Keep your will under review – especially if any change circumstance e.g. death of some person e.g. executor, trustee, guardian or disposal of major asset e.g. house.
• If you have property abroad ensure that your will abroad does not revoke your Irish will.
• Will will not be revoked by divorce though should be revised in the light of it WILL AUTOMATICALLY REVOKED BY ANY SUBSEQUENT MARRIAGE UNLESS MADE IN CONTEMPLATION OF THAT PARTICULAR MARRIAGE.

Appointing an Executor

Persons who will administer your estate after your death

• Appoint people you trust eg. family, and someone who is likely to survive you
• Minimum of 2 people can have up to 4.
• In very big estate consider appointing a trust corporation eg a bank along with persons you know, charges high but may be worth it, if estate valuable.
• Ask the people concerned if they are happy to be an executor.
• Make sure they know where the will is.
• Consider appointing someone with business and/or legal expertise.

Appointing Trustees

Persons who will administer any trust you set up. Executors are usually your trustees but it is not essential, they can be different people.

• Appoint people you trust and who know what you want.
• Can have a Letter of Wishes as a guide to your Trustees but note it is not legally binding.

Appointing Testamentary Guardians

Persons appointed by a will to be the guardian of a child. (Married parents are automatically the legal guardians of the child). In case of child or a non-married couple, mother has automatic guardianship, father has to apply to Court for guardianship.

Can have the same person as Executer and or Trustees if so wished.

• It is very important to consider this appointment for the Special Needs Child.
• Provide for as many eventualities as you can, ie if you die together what is your disposition.
• Address the worst case scenario, will should be drafted as is if it is have an immediate effect eg. Could die tomorrow.

Alternative Dispositions vis a vis your children

With regard to children with and without Special Needs:

• The Succession Act of 1965 imposes a moral duty for parents vis a vis their children. If parents fail to make proper provision the court can intervene (Section 117) to do what they consider is proper provision. This applied to all of your children though adult children without a need for provision will have a difficult time in proving a case under Section 117 especially if you have a special needs child, whom you have provided for.
• Your primary concern is to ensure that the moral duty of the Special Needs child is discharged. Eg. Leaving your estate equally among all your children may not be proper provision if one of your children has Special Needs. If your children are very young it might be permissible to leave your estate equally for the time being and change it later.

Making provision for a child with Special Needs

The most usual way is to set up some form of Trust in the will. If the Special Needs child predeceases, you can provide for that trust to be divided equally among your other children.

Types of Trusts

Simple / Bare Trust

“I leave all my estate with the benefit of the trustees to my son……..” the property is held by the trustees and must be applied for the benefit of the child, when the child attains 18 and if he or she has fully capacity can call on trustees to pass property to him, trustees have no discretion.

Fully Secret Trusts

The existence of the trust and the beneficiary not appear in the will.

“I leave all my property to my son…….”, but son is actually holding the property on trust for his special needs sibling. The names son must know this and agree to it. This notification and agreement is best recorded in writing but will not form part of the will.

Half Secret Trusts

“I leave all my property to my daughter x on trust.” The trust itself is revealed but the beneficiary is not.

Discretionary Trusts

You are giving a discretion to the trustees.

In respect of someone with full age and no special needs there is a 6% tax charge plus a 1% annual charge hereafter. (This is a separate tax to inheritance tax). If they are a minor or have an intellectual special need there is an exemption from this tax.

Caution: The beneficiaries of this trust are defined in the will but there is usually a tendency to define the beneficiaries widely so as to give it more flexibility. However, you need to be more specific when special needs children are involved eg. naming the children, do not include their spouses or issue.

This needs to be discussed with Solicitor in the light of the special needs.

Special Needs child in receipt of Benefits

Benefits may be lost if a child comes into money. However, this is not a reason not to provide for your child – Section 117.

Bear in mind also that in the fullness of time the child with Special Needs may need residential care in the future so provision should be adequate to allow for this where your means allow.

Books

“Wills, Irish Precedence and Drafting” by Brian Spierin – can be obtained in the library or Hodges Fidges, Waterstones.