Why make a Will?
You decide who gets what when you’re no longer here
Therapy: You take stock of your stuff
Dispels uncertainty as to your assets
Peace of Mind: there’s nothing like being organized
Creates less friction amongst those who survive you
A Will is an instructive instrument which governs the distribution of one’s assets upon their death.
The person making the Will is called is Testator (male) or Testatrix (female).
The Will, usually prepared by an Attorney.
The Will is only effective upon death of the Testator/Testatrix.
In the Will, the Testator/Testatrix appoints an Executor (male) or Executrix (female) and directs how their property and assets are to be distributed when they die.
The Will can also name guardian(s) for children if one should die before the children become adults.
The Will can also leave specific instructions like arrangements for the funeral and even when and how the Will is to be read.
In order to make a Will one must have the requisite Animus Testandi that the Testator/Testatrix had the mental capacity to make the Will; that they knew and approved of the contents of his Will; and that the will was that of a free and capable Testator/Testatrix, that is, at the material of the making of the Will they exercised a genuinely free choice so doing and that the entire transaction was voluntary and not under the undue influence or fraud of another. The lack of Animus Testandi has been the basis on which the admissibility of many wills has been challenged in court and consequently has been the subject-matter of many contentious probate actions. It is essential that there are two witnesses present who are neither beneficiaries nor their spouses.
This signing of the Will is called ‘execution’ which must be done by the Testator/Testatrix and the two witnesses all in the physical presence of each other. It is not recommended that Wills be executed by the virtual (online or otherwise) presence of witnesses to the Will.
While the witnesses need not know the contents of the document, they must know that it is Testator/Testatrix’s Will that they bear witness to.
At least one of those witnesses will be required to depose to an Affidavit of due execution, prepared by the Attorney in conduct of the probate of the Will.
This Affidavit will explain the conditions surrounding the execution of the Will.
Witnesses to a Will must be informed of and consent to this obligation prior to the execution of the Will.
Appointing an Executor is a big decision: ideally it is someone who can be trusted with the responsibility to act properly on behalf of the beneficiaries and the estate at all times.
You should have the permission of the Executor before making that appointment in the Will.
The Executor’s role is to have an Attorney make an application for a Grant of Probate to a court of competent jurisdiction.
Once a Grant of Representation in the estate of the deceased is granted the Executor/Executrix becomes the Legal Personal Representative of the Estate and must pay all the debts of the Estate and then distribute the gifts in the Will to the beneficiaries.
Hence an estate is everything comprising the net worth of an individual, including all real property, cash and securities, insurance policies, jewellery and any other assets that the individual owns or has a controlling interest in.
One of the things many forget to think about when preparing their Will and their Estate is the finances for handling legal and testamentary expenses. These are important considerations.
It is advisable that once the will has been prepared, keep with it a separate list of all the assets and even include copies of deeds, insurance policies, instruments of investments, share certificates, names/branches/account information for bank accounts, financial institutions, updated contact information for witnesses, executors and beneficiaries.
This is very vital information which will assist the Executor to manage the distribution of the assets after probate and maintenance of the estate in the interim.
If a homemade Will is contemplated - which is generally inadvisable, please ensure that the witnesses are willing, able and have the proper mental capacity.
In the absence of a Will, the estate is distributed according to the laws of intestacy where, one’s spouse, children, parents and siblings will benefit accordingly.
In the case of one dying without a Will, (intestate), those next of kin of the deceased should seek legal advice on how to proceed with making an application to the court for a Grant of Letters of Administration.
Prepared by Ronald Chuckaree, Attorney-at-Law
The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition.