Knowledge…Shared…Multiplies
Towards the end of 2019, I was invited to speak to a church group on the topic of making a will. As is well known, a will is a written document in which a person called the testator sets out their instructions as to what they want to be done with their estate after they die. The law requires that certain formalities related to the signing and witnessing of the will be strictly followed for the will to be valid.
I had the opportunity in that talk to answer several questions and clear up misconceptions about wills and to discuss some of the mechanics of making a will. Below are some of the questions asked and answers provided.
Do you need a lawyer to make a will? The answer is no. Any adult person of sound mind can make a will. You can make a will for and by yourself. You can seek the assistance of a friend. Or you can go to a lawyer.
However, it is a good idea to seek legal advice, given the need for strict compliance with the formalities for making a valid will. Keep to the forefront of your mind that if your will fails for noncompliance with one of the formal requirements, the entire purpose of going through the trouble to put your wishes in writing would have failed. Unfortunately, you would be dead by then and not in a position to make the corrections.
Must a will be registered? The answer is also no. There is a place in the Registry for storing wills and one can lodge their will there. But that is not a legal requirement for a valid will. Your will could still be valid if it is kept under your mattress or given to someone else to hold. The main thing is that you want to ensure that your will is available after you die so that your estate can be distributed in accordance with your wishes.
Can you change your will? The answer is yes. You can change your will at any time before your death. This is so since your will only takes effect upon your death. However, the same requirements for making a will apply to changing it. You must be of sound mind and you must comply with the formalities related to signing and witnessing the will.
Do you have to seek permission to name a person executor? No. The executor is the person who is responsible for administering your will. Their job is to pay your debts and expenses and to distribute your estate in accordance with your wishes as expressed in your will. Given the importance of the position of executor, you may want to inform the person that you are naming them as executor even though there is no legal requirement to do so.
Is a named executor bound to take up the position? No. A person appointed as executor can renounce the appointment. To guard against this risk you may name more than one executor, so if one renounces others are available to administer your estate.
Do you have to inform the executor of their appointment?
No. Just as you don’t have to seek their permission to appoint them neither do you have to inform them that they have been named as executor in your will. However, given the importance of the role of executor, it may be a good thing to both seek the consent of your executor to be appointed and inform them after you write your will. Further you may name more than one person as executor in which case you may inform some but not others that they are being appointed as executor of your will.
Is your will still valid if the executor dies before you? Yes. Despite the importance the executor your will remains valid even if they die before you.
To guard against the risk that your executor dies before you, you can appoint more than one executor.
Do you have to tell your executor the contents of you will? No. You can if you want but there is no legal requirement to do so.
Can an executor be a witness to a will? Yes, your executor can be a witness to your will. However, if your executor is also a beneficiary under your will, any gift you leave for them or for their spouse will fail if they also sign the will as witness. The will would remain valid but your executor would not be entitled to the gift since under the law any gift to a witness or their spouse is legally invalid.
What happens if you leave a gift in a will but the person you leave it for dies before you? If you leave a gift for someone in your will and the person dies before you, the general rule is that, in the absence of words showing a contrary intention, the gift lapses and it would remain to be distributed under your estate. The exception to this is if the gift is to your child then the gift would not fail if your child who predeceased you had children who are alive when you die. In this case the gift would form part of the estate of the dead child.
What happens to your estate if you do not make a will? If you do not make a will then you would be said to have die intestate. In this case your estate would not be distributed according to your wishes but it would go to your spouse and children or others in accordance with the formula set out under the Intestates Estates Act.