Issue 1: …If I Want To Make A Will

By May 1, 2018 April 6th, 2019 What Should I Do

We all own something. It may be something “large” like a business or a house, or something “small” like a pen or a favourite cup. No matter what it is, it is ours and we are entitled to do whatever we want with it while we are alive. One of the powers that we have over our property is to determine how we would like it managed or distributed after we die. A Will is the means by which we do that.

What is the effect of a Will?

A Will is a document that declares in clear terms how an individual, who is referred to as “the testator”,  wishes his or her property to be managed and distributed after death. It does not give any person named in the Will an interest or a right to the property while the testator is alive; it only takes effect when the testator dies. In keeping with this, a testator can revoke or alter a Will at any time before death. However, if a Will is revoked and not replaced with another Will, the property cannot be distributed according the specific wishes of the testator; it will have to be distributed in the general manner otherwise specified by law.

What do I need to consider in making a Will?

If you wish to make a Will, you ought to carefully consider and identify the following:

  1. At least one Executor – This is the person who is named in the Will as being responsible for the
    management and ultimate distribution of your property according to the wishes expressed in the Will. The Will may require that the Executor be paid for this service or therwise be given some of the property, but it does not have to.
  2. The Property to be distributed – This applies to all property of whatever form. It is not limited to houses, cars and cash. It can include property like life insurance policies, jewellery, furniture, clothing etc. It is also best to carefully review all documents of ownership, if any, to ensure that
    the description in the Will is accurate.
  3. How you wish debts to be satisfied – All debts, including funeral and testamentary expenses and taxes must be paid before any of the property can be otherwise distributed. It is therefore best to specify a particular bank or credit union account or property which is to be used to
    satisfy those debts.
  4. The Beneficiaries – These are the specific persons to whom you would like your property to be given. You need to clearly identify them and the specific properties which are to be given to each of them.
  5. The Witnesses – These are persons who must be present when you sign the Will and must sign it in front you and each other. They are later used to verify that you did in fact sign the Will. Do note that, witnesses cannot be beneficiaries under the Will. This is to ensure their independence and reduce the possibility of you being unduly influenced by either of them to sign the Will.
  6. The clearest way to express your wishes – If the terms of a Will are confusing or ambiguous or do not clearly identify how you wish the property to be distributed, specific gifts or even the entire Will may not be able to be effective. You must ensure that the Will unmistakably states
    exactly what you want.

Couldn’t someone just create a document and pretend that I intended it to be my Will?

Fortunately, the law has created a number of safeguards to ensure that just “any old document” with a signature of the testator cannot be considered a Will. In order for a Will to be valid:

  1. It must be signed by the testator in the presence of two witnesses;
  2. Each witness must sign the Will in the presence of the testator and each other;
  3. The testator must be mentally competent that the time when the Will is made; and
  4. There must be no subsequent Will revoking it which complies with these rules.

Additionally, before any property can be distributed, the Executor must apply to the Registrar of the Supreme Court for authorization known as a Grant of Probate. It is while this Application is being considered or even before it is made that the validity of a Will may be challenged on a number of grounds, including fraud. This is one type of Contentious Probate Proceedings which are conducted in the High Court.

Can I prepare a Will myself even if I am not a lawyer?

Yes you can.

However, it is best to have the assistance of an Attorney-at-Law to ensure that:

  1. The Will satisfies all of the legal requirements;
  2. The terms are expressed as clearly as possible and are legally able to give effect to how you truly want the property to be managed and distributed;
  3. There is a record of the Will having been made without persons close to you necessarily having the opportunity to see the contents; and
  4. Witnesses to the execution of the Will can be provided You do not want those close to you to know the contents of your Will or you cannot identify witnesses who you would not like to also benefit under the Will.

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We hope this has been helpful.