Testator: plain-English guide for Irish probate
The legal term for a person who has made a valid will. A female testator is historically called a testatrix, though testator is accepted as gender-neutral in modern Irish practice.
What it means, in plain English
A testator is a person who has made a valid will. A will is only valid if the testator had legal capacity to make it (over 18 or married, and of sound mind) and if it was signed in the presence of two witnesses who also signed in the testator's presence. A testatrix is the historical feminine form of the same word, still occasionally used in older deeds but superseded in most modern Irish legal drafting.
Testator in Irish probate practice
Capacity to be a testator is presumed for any adult of sound mind, but it is not automatic: a person with advanced dementia or acute mental illness at the time of signing may not have the required testamentary capacity, in which case the will is void. The legal test, from the nineteenth-century case Banks v Goodfellow and still applied in Ireland, is whether the testator understood the nature of making a will, the extent of their property, the persons who might have claims on their bounty, and how these factors combine in the distribution they are choosing. Witnesses must not be beneficiaries or spouses of beneficiaries under the will; if they are, the gift to them fails under Section 82 Succession Act 1965, though the will itself remains valid. A testator can revoke or amend a will at any time while they retain capacity, usually by a codicil or by making a new will that expressly revokes all previous wills.
Worked example
Frank, aged 76 and living with moderate Alzheimer's, asked his solicitor to draft a new will that substantially changed his earlier distribution. The solicitor arranged for a consultant psychiatrist to assess Frank's testamentary capacity immediately before signing and to record the assessment in a contemporaneous note. Frank signed in the presence of his GP and a neighbour, both of whom then signed as witnesses. When Frank died two years later, a child excluded under the new will tried to challenge it for lack of capacity. The contemporaneous psychiatric note was decisive: the will stood.
The statutory position
Section 77 Succession Act 1965 sets out capacity (18 years, or married, and of sound mind). Section 78 requires signature and attestation by two witnesses present together. Section 82 voids gifts to witnesses and their spouses. Section 85 permits revocation by a later will, destruction, or marriage (save where the will is made in contemplation of the marriage).
Related terms in this glossary
Related reading
How ProbatePack handles Testator
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