By Ravi Nanga
THIS article will examine wills.
It is important when people are planning their affairs, they make provision for their property when they pass away, so as to avoid conflict.
This is particularly important where you have a large family in order to prevent claims from being made against a person’s estate, which can be expensive in the long run.
Should a person not make a will, upon death, their assets will be divided amongst their beneficiaries based on the laws of intestacy.
Normally, where you have a spouse and children, the spouse will be entitled to half of the assets and the children will be entitled to the other half in equal shares. This can prove to be problematic in respect of real estate, as if there are a large number of beneficiaries, the land will be vested in multiple persons, so that it can prove difficult to deal with individual properties.
In planning your estate, it should be borne in mind that you should avoid making promises to persons in respect of your assets, as if a promise is made and a person acts on that promise, should a will contain a contrary provision that is different from the promise made, it can lead to a claim being made against that asset.
For example, if you promise one child a parcel of land and based on that promise that child goes onto the land and develops it and in your will you end up leaving that parcel of land to another child, the first child can have a claim for the land.
In the event you have made promises to persons, those promises should be reflected, as far as possible, in your will.
While a will is a simple document, there are certain legal requirements that must be fulfilled in order for a document to be regarded as an effective will. Accordingly, if those requirements are not followed, you run the risk of the will be invalid, with the result that the assets will then be shared based on there being no will.
Further, it is important to note that clear language must be used, as if there is ambiguity, it may lead to a challenge in respect of the provisions of the will. It should be noted that there are special rules of interpretation that apply to the interpretation of wills.
In the event you decide to prepare a will, the first step will be to list all your assets.
Secondly, list all your beneficiaries. It should be noted that anyone can be a beneficiary, and beneficiaries are not limited to immediate family.
Thirdly, decide what asset you want to give to which beneficiary. In the event you own a company, although you may be the owner of the company, care should be taken to distinguish between your personal assets and the assets of the company, as in your will you will not be able to dispose of the company’s assets.
Fourthly, identify a trustworthy person to appoint as the executor of the will. The executor will be the person to apply for probate of the will and dispose of the assets in accordance with the provisions in the will.
Fifthly, you will need to identify two witnesses in order to witness you signing the will. Finally, you should set out your wishes in your will.
It should be noted that a will only takes effect upon death.
Accordingly, even if you make a will, you remain free to deal with your assets as you see fit. Upon death, the executor will call in the estate, that is, compile a list of all the assets of the estate in preparation for applying for probate of the will. In the event assets that were listed in the will were disposed of before the person’s death, those gifts will fail.
Further, in the event your estate leaves a debt to be settled, and there is insufficient cash to settle the debt, it may become necessary to sell assets in order to settle these debts. There are rules that apply in order to determine how assets are to be sold in order to settle debts, and it is possible that notwithstanding a gift in a will, it may become necessary to sell the asset that is the subject of the gift. If that occurs, then the gift in the will would fail.
Given the fact that a will takes effect upon death, a will can be revoked at any time and a person is free to change their will as many times as they wish.
However, it is important to note that a person must be of sound mind and be aware of the fact that he is preparing a will. In the event the person is suffering from a condition that affects his mental capacity and it is not clear that he understands that he is preparing a will, such a will is open to challenge.
Further, it should also be noted that should you prepare a will and you subsequently get married, the marriage will have the automatic effect of revoking the will.
Due to the importance of a will, and in order to ensure that all the requirements are followed, it is advisable that you seek the services of an Attorney in order to be properly advised in the preparation of your will.
Ravi Nanga is an attorney-at-law
[Please note that this article is intended only to provide general information on the topic being addressed and should not be taken as providing legal advice. In order to be properly advised it will be necessary for an attorney to examine the relevant documents and obtain the necessary instructions before properly advising as to rights and obligations].