Many persons visit Charles & Associates, with the view to having us draft and prepare a will. In this episode of the blog, we thought it prudent to concisely set out the nature of the discussions we typically engage in, when assisting clients in preparing their Last Will and Testament.
As you are aware, a will is a document, drafted by a person (called a “Testator”) setting out how they wish to have their property (real and personal) distributed upon death. It is imperative that the assets a Testator is seeking to pass by way of a will, are assets the Testator owns or is a joint owner at the time of their death. That is, the Testator ought to hold valid title to and/or clear ownership of the property he or she is intending pass. These can range from money in the bank, jewelry, furniture, land, houses, shares and the list goes on.
WHAT SHOULD A WILL CONTAIN?
The legislation sets out specific requirements that ought to be put in place, for a will to be deemed valid. The requirements have the added bonus of assisting in avoiding fraud. These requirements include but are not limited:
A will must be in writing.
The Testator must include their full name as well as any names by which they are known or referred to.
The full name of an Executor or an Executrix or Executors (person(s) responsible for ensuring that the beneficiaries receive what is due to them under the will). The Executor or Executrix should be someone who is trustworthy, as they would be required to probate and distribute the estate, in accordance with the Testator’s wishes. We always encourage persons to be very careful about who they select to be an Executor or Executrix.
A will must be in writing, clear, legible and understandable (whether hand written or typed and printed).
A will must be signed by the Testator at the foot or end of the will. Please be advised that a signature includes a thumb print and/or initials.
A Testator must be 21 years or over.
The signature must be in the presence of two (2) witnesses. We often recommend that the witnesses be likely to outlive the Testator. The names, occupation, address and preferably a contact number should be provided for both witnesses. In order of priority, the Testator must sign first, in the presence of the witnesses and the witnesses sign after, in the presence of the Testator and each other.
Please DO NOTuse a beneficiary (someone who is intended to benefit under the will) as a witness.
A Testator MUST BE:
– of sound mind and memory (have the mental capacity to make a will).
– uninfluenced but instead should freely undertake the disposal of his or her assets.
– in a state of know and understanding, as to what he or she is doing at the time of making the will, who they wish to benefit under the will and how they wish to have their assets distributed.
A will can be revoked by a Testator any time before death. They can do so by making and signing a new will or simply revoking the old will (tearing it up, burning, striking out signature, shredding). The intentional physical destruction of a will by the Testator or by a third party upon the instructions of the Testator, also revokes the will.
Marrying after executing a will, also invalidates the will.
We hope you found this series helpful and we encourage everyone to take heed of the above when proceeding to draft their will, so that the gift is deemed valid and has no difficulty in passing.