Wills – General Principles
What is a Will?
A Will is a written document in which you state how you want your property distributed after you die. A person who makes a Will is called a “Testator”. Making a Will allows you to choose what happens to your assets after you die. It also allows you to nominate an Executor, who is the person responsible for collecting and distributing your assets and making sure your wishes are met. You may also nominate whom you would like to look after your children and how you would like your remains dealt with, although these nominations are not legally binding.
What happens if I die without a Will?
If you die without having made a Will, you are said to have died “intestate”. If this happens, your next of kin will have to apply to the Supreme Court for Letters of Administration instead of a Grant of Probate which occurs when you die with a Will. The Succession Act determines how this Estate of persons who die intestate is distributed and this depends on the value of the Estate and the relationship of the next of kin to the deceased. If you are the next of kin of someone who has died intestate, you should seek legal advice.
Who can make a Will?
You can make a Will if you are 18 years of age or over and are of sound mind and understand the nature and effect of what you are doing. If you are under 18 you may make a Will if you are married or if you are contemplating getting married. If you make a Will in contemplation of marriage and the marriage does not take place, the will is of no effect.
Formal requirements for making a Will
The key requirements for a valid Will are:
- the Will must be in writing;
- the Will must be signed by the Testator but not necessarily at the end of the Will, although this is preferable so as to ensure that no alterations have been made post execution. It is also preferable if the Testator signs at the bottom of each page of the Will, although not essential;
- the Testator’s signature must be witnessed by two witnesses who should not be a beneficiary or a relative of a beneficiary;
- the witnesses must sign the Will in the presence of the Testator and each and each other;
As the formal requirements for making a Will must be strictly adhered to, it is recommended that you have your Will drawn up professionally by a solicitor.
What should be in a Will?
The Will should specify that it is your last Will and that you revoke previous Wills. It should appoint one or more persons to be your Executors. Your Will should provide for the payment of funeral expenses and other debts which you have incurred in your lifetime and remain outstanding. It should then state how you want your property distributed either by naming the item and the person to whom it is given or by giving a person or persons a certain amount or percentage of the total value of your property. If your Will contains specific gifts, it should also state what is to happen with the residue (remaining assets) of the Estate.
An Executor is a person named in your Will to look after your Estate and distribute it in accordance with your wishes. An Executor must be 18 years of age or over. It is preferable for there to be two Executors named in the Will as this will be of assistance if an Executor dies or no longer wishes to act as Executor. When choosing people to be your Executors, it is preferable to choose someone close to you who is trustworthy and are of a similar age, e.g. your spouse. If no Executor is named in your Will, the Supreme Court will appoint an administrator who will carry out your wishes as set out in your Will.
Changing a Will?
Once a Will has been signed, there can be no alteration either by crossing out or writing in new clauses. Alterations such as these will have no effect. The best way to amend or alter a Will is by doing so in a separate document called a “Codicil” or by making a new Will. For a Codicil to be valid, it must also meet the formal requirements of making a Will.
Effect of Divorce or Marriage on your Will
Your Will is automatically revoked, or made invalid, when you get married and on the day you are formally divorced by a Court. However, Wills made in contemplation of marriage or divorce are valid. If you make a Will in contemplation of marriage and you do not get married the Will is void. If you do not wish to make a Will in this way, a new Will must be made after you marry or divorce, otherwise you will die intestate.