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 wishes in plain, clear language. The testator
should avoid the use of technical legal phrases.
Please note, however, that in cases where the gifts intended
to be made by a testator are 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 a portion of the property, it is recommended
that the testator consults an Attorney-at-Law and not
write the will on his own.
Who can make a 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 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. What
may be devised or bequeathed by Will
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”.
Execution
of Wills
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. Failure to
follow this procedure makes the will invalid. A
testator can have someone sign on his/her behalf and
that person may either sign the testator's name or his
own 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 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.
Gifts to attesting witnesses or their spouse are invalid
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
is valid but the Witness or his spouse will not receive
the gift.
Who can be Executor?
An executor is the person responsible for administering
your estate. You must appoint at least one executor
but no more than four. It is recommended that at least
two (2) executors be 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.
Marriage will automatically
revoke a Will
A will is revoked by the 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.
The importance of a Residuary
Clause
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 commence with
the words “all the rest and residue of my estate…”
What
if the Devisee dies before the Testator
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, if any.
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.
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