Have you have been toying with the idea of preparing your will? Everyone knows death is an eventuality, yet not many of us take the time to make arrangements for estate planning, particularly to prepare a will. Probably it is because it seems to be complicated and if that is the case, this article should provide a guide. But first, let us define exactly what is a will? A will is a legal document that sets forth your wishes regarding the distribution of your property (belongings) and the care of any minor children in the event of your death.
A will must be in writing, whether handwritten, typewritten or computer-generated. Great care must be exercised by the testator (that is
the person who is making the will) to express his/her wishes in plain, clear language. The testator should avoid the use of technical legal
Please note, however, that in cases where the gifts intended to be made by a testator is not simple, as for instance, where he or she wishes to “tie up” a portion, or the whole of the property for some person’s lifetime, or during some person’s minority i.e. (whilst that person is under 18 years), or where the testator wishes to create any trusts as to the portion of the property, it is recommended that the testator consult an Attorney-at-Law regarding the wording of the will.
The Wills Act sets out some legal formalities which must be observed by the testator to ensure that his will is accepted as valid by the Court and effect given to his intention as expressed under the said will. The law requires that persons have the legal and mental capacity to make a will. This means that the person must be over the age of eighteen years, be of sound mind and must make his will free from fraud, force, or duress.
Once you own something that has a monetary value, you need to write your will. The asset must be fully described to allow for it to be easily identified. Instead of saying “my car” for instance, you can describe it as “my 1992 white Toyota Corolla Motor Car Licence No. 1223 BA”.
A testator must sign his name at the foot or end of the will in the presence of at least two witnesses, both being present at the same time while the testator is signing.
Thereafter the witnesses must sign the will in the presence of the testator though not necessarily in each other’s presence. Failure to follow this procedure makes the will invalid.
A testator can have someone sign on his/her behalf and that person may sign the testator’s name but the signature must be made in the testator’s presence and based on his instruction.
If a testator is illiterate or blind, and only capable of placing an “x”, the will must state that the will was read over to the testator and that he/she understood the contents of the
will and then placed his/her “x” in the presence of both witnesses.
The testator and the witnesses should sign in the margin of the will opposite or near any correction, “crossing out” or other changes, which are made to the will. It is recommended that the testator should ensure that the will is not witnessed by a person who is receiving a gift under the will or that person’s spouse. While the Law was amended to allow these individuals to receive the gift, it creates a burden of proof that may be difficult to overcome when required by the Court to be done. In such cases, the will remains valid but the witness or his spouse will not receive the gift.
The testator and the witnesses should sign in the margin of the will opposite or near any correction, “crossing out” or other changes, which are made to the will. The testator should ensure that the will is not witnessed by a person who is receiving a gift under the will or that person’s spouse. In such cases, the will remains valid but the witness or his spouse will not receive the gift.
An Executor is a person named in a will who will be responsible for administering your estate. Anyone can be appointed an executor provided that there is at least one person so appointed and no more than four. It is recommended, however, that at least two (2) Executors are appointed, to ensure that if one dies before the testator or refuses to act on the death of the testator, then another is available to administer your estate.
A will is revoked by the subsequent marriage of the testator. If you get married after writing your will, then it is crucial that you prepare and execute a new will. You are free to change your will at any time but you must ensure that after the new will is properly executed, the old one is destroyed.
A will operates from the death of the testator and therefore affects property acquired by the testator after the will is signed. You must ensure that a ‘catch-all’ clause otherwise called a residuary clause is used as the last paragraph to ensure that somebody benefits from this property. This clause usually commences with the words “all the rest and residue of my estate I give and devise to …”
If a person to whom a gift is given in a will dies before the testator, that gift generally fails or lapses. If this happens, the testator can prepare another will and give the gift to someone else. If not, the gift will form part of your residuary estate and dealt with according to your residuary clause. The only exception allowed by the Wills Act is where the deceased devisee is a child of the testator, then the Act provides for the gift to go to the children of that child. The above are some guidelines to aid you in making your Will. Consult an Attorney-at-Law if you have any queries or need further assistance.
1. Start by making a list of your assets such as cash, investments, trusts, shares, vehicles, art, jewelry and other personal possessions of value.
2. If you have children under 18 years old, consider who you would like to look after them if something happens to you, and appoint them as guardians.
3. Appoint someone responsible and trustworthy to be your executor, as they will be responsible for seeing that your final wishes are granted.
4. Make a list of your major debts, and keep in mind that these must be paid first before your beneficiaries receive anything.
5. Take time when deciding who will inherit your property, and consider alternative executors and beneficiaries (should their death precede your will).
6. Remember to review your will every few years as succession laws and family situation changes.
7. Keep in mind that some assets like superannuation funds and life insurance may not be distributed in a will. Ensure that your nominated beneficiaries for these types of policies are up to date.
8. Store your will in a safe place and give written instructions about its whereabouts to your executor.