Your Will and Testament
The first thing on the minds, as its always been, of new immigrants or refugees that arrive in this country is to fulfill their dreams; to get a good job and have opportunities that they did not have in their homeland. Over time as they integrate into society the furthest thing from their minds is having this dream not materialize because of an untimely circumstance and the unpreparedness of knowing the welfare of their rights. Culturally, this is not a known practice for most people and after observing some of the conditions of the community this true story is a reminder to all of us to act on our rights:
In witness to a recent demise of an acquaintance who was a single person, aged 47 that passed away suddenly due to a burst aorta. He had no known living immediate relatives, had no siblings and when his parents died years ago he became the heir of their estate. His grand parents, uncles and aunts who lived in another country all died before him as well.
Due to there being no Will, his body and assets were held ‘intestate’. Not even the church that he faithfully belonged to could claim his body and bury him in the traditional religious way. His body would be buried and his assets disbursed on the discretion of the Intestacy Rules of the Province. After a few months the Province finally tracked down some of his cousins who live in Europe. They never met or knew their deceased cousin however they had the rights under the intestacy rules to inherit his assets and make claim of his body and estate.
There are many more true stories some less complicated than the one above, but in all cases a Will would appoint the body and assets of the deceased to its rightful inheritor per the wishes of the deceased person.
If someone dies without making a Will, they are said to have died ‘intestate’. The governing law then decides how any assets are distributed and this may not be as you would have wished.
When a person dies without making a Will, dealing with their estate can be very complex. It can also take a considerable time in extremely complicated cases.
Making a Will is not something you are required to do by law but by making a will you can choose how your property and assets are distributed between family and friends.
The following information offers some input as to the importance and procedures for understanding the purpose of a Will:
The advantages of making a Will
If you are an unmarried couple, you can make sure your partner is provided for, by making a Will.
Making a Will also enables you to ensure that your dependents do not pay more Inheritance or Capital Gain Taxes than they need to.
Before making a will, it’s advisable to think about what you want included in your Will, for example:
• Who you want to benefit from your Will
• Who will look after your children
• Who will act as your executor – responsibilities explained towards the end of this article
After making a Will, it is important to keep it in a safe place and ensure your executor, or a friend/relative is aware of where it is.
You should review your Will regularly and consider making a will again after any major change, such as marriage, divorce, having a baby or moving house.
Should a single person make a Will?
As a single person it is extremely important to make a Will to ensure that your worldly belongings pass to the people you want to benefit. Without a Will your assets are likely to pass to your next of kin under the “Intestacy Rules”. The Intestacy Rules provide a pecking order of Beneficiaries starting with your parents and moving on to your brothers, sisters and remoter relatives.
Of course, if you have children your assets will pass to your children in equal shares.
People often think “I have nothing to leave”. Remember you probably own a house and there may be a considerable amount of equity which you will want to pass to your nominated Beneficiaries. You may also subsequently acquire assets which will pass under a Will.
Are verbal changes to a Will valid?
Wills are strict legal documents which have to be signed and witnessed in a very specific way. The Wills Act requires that a Will is in writing signed by the person making it in the presence of two independent witnesses both of whom must be together.
Verbal changes to a Will are not valid and it is, therefore, very important that any changes to an existing Will are made by either creating a fresh Will or by Codicil (which is a legal document amending a Will).
Keeping a Will up-to-date
People’s lives change very quickly from day to day and it is advisable to keep Wills under regular review. Wills should be formally reviewed at least every 3-5 years and certainly on the happening of any of the following events:
• The death of a spouse or close family member
• Divorce or separation
• Marriage or Remarriage
• Birth of children
• Moving house
• Starting a new business
• Receipt of a windfall or inheritance from a relative
• Serious illness
• Redundancy
• Retirement
This is not a comprehensive list and any change of circumstances should trigger a change to your Will.
When is my Will a legally binding document?
A question on many people’s lips is when is my Will legal document? A Will is only considered legally binding once it is properly signed and dated by the Will maker. The Will has to be signed by the Will maker while in the presence of two independent witnesses. The independent witnesses both verify the Will maker’s signature and each others, as all have to be present when the Will is signed.
A Will can be challenged by relatives or would be beneficiaries if there are question marks over the making an execution of a Will which will make it valid and binding. Therefore it is essential to make a valid Will to prevent its validity being challenged once you are gone and unable to do anything about it.
Is my Will Valid?
There are certain requirements that have to be fulfilled when making a Will for it to be legal.
You have to be over 18, of sound mind, to understand what you’re doing, and be aware of what you’re leaving and the people to whom you’re leaving it when making a Will. The Will must be made purely of by your own instruction and not under any duress from any other person i.e. someone who is trying to influence the contents of the Will for personal gain.
It must be made of your own volition and without any outside pressure from people who might benefit.
When your Will is complete, you need to sign it in the presence of two witnesses, both of whom must add their own signatures – that makes it into a legal document. To keep the process above board, neither a witness nor their spouse can benefit from your Will. If any of them is due to inherit, they can still be a witness, but it means they can’t benefit from the Will.
Can I change my Will?
When your circumstances change, you might want to change your Will. If you just want to make small amendments such as a change of name then you can add a codicil. However if major changes are required, then it is easier to make a complete new Will. Like the original Will, it needs to be signed and also have the signatures of two witnesses to become a legal document, although they don’t have to be the same people who signed the original Will.
You can destroy a Will by tearing it up or burning it – but you have to do it yourself, or it must be done while you’re there. You also need to make sure that your new Will has a clause revoking all prior wills.
Can I Challenge a Will?
If you want to challenge the contents of a Will you may be able to and should consult a solicitor and quickly as challenges to Wills are time limited to 6 months following a grant of probate. As long as the Will was created properly, it can be difficult to challenge. If you want to challenge a Will you will need evidence to prove your case, as the law allows a great deal of flexibility to those making a Will.
Examples of people able to challenge a Will are:
• Former and current spouses and civil partners
• deemed “children of the family” (which might not apply to adult children)
• someone with whom the deceased has co-habited for two years prior to death.
• A person with a substantial financial interest in property owned by the deceased
• someone who owned property jointly
These all might have a claim outside the Will, but legal advice would be necessary so speak to a solicitor to see if your challenge would be entertained and if valid.
What is an Executor?
An Executor is someone who deals with the administration of the estate of someone who has died. An Executor is appointed because he or she is trusted by the decease and is responsible for collecting in the assets of the estate and administering them to the Beneficiaries named in the deceased’s Will.
An Executor can be an individual or a trust corporation. Quite often more than one Executor is appointed. Where more than one Executor is appointed the Executors have to act jointly and reach decisions by a majority.
An Executor has to be over 18 and should not be bankrupt. Executors can also benefit from the deceased’s Will.
Executors always have to act in the best interests of the Beneficiaries and are often also appointed Trustees.
An Executor job starts immediately after the death and finishes once all of the assets have been administered.
Who do I name as an Executor?
You should always appoint someone who:
• You trust implicitly
• Is of roughly the same age as you
• Is over 18 and not bankrupt
• Is financially astute or has a close association with the family
Whilst it is not a requirement, you should discuss your choice of appointment with your Executors to ensure that they are happy to act.
Executors can and often do instruct professionals (i.e. Solicitors, Accountants) to deal with the technical aspects of the administration of the estate. Unless authorized by the Will, an Executor is not entitled to charge for his or her services in dealing with the administration of the estate. An Executor can recover out of pocket expenses (such as the cost of employing a professional). An Executor is entitled to be indemnified in respect of costs and expenses from the assets of the estate. It is advisable to appoint an Executor who is either financially aware or has detailed knowledge of your circumstances.
What does being an Executor entail?
An Executor of a Will is someone who is responsible for collecting in the assets of the deceased’s estate and administering them in accordance with the terms of the Will. An Executor is a responsible position particularly as you will be dealing with money and other assets.
The appointment of an Executor stems from the death of the deceased. As an Executor you have power to deal with the assets of the estate immediately after death. Some assets, however, can only be sold once a “Grant of Probate” has been obtained. The Grant of Probate is proof that the Will is valid and that the Executor has been appointed).
An Executor can be held liable if the assets of the estate are not administered correctly or if any debts are discovered after the assets have been administered to the Beneficiaries in the Will.
What is a Power of Attorney?
A Power of Attorney is a document which you (“the donor”) appoint another person (“the attorney”) to deal with your financial or other matters during your lifetime. Once Power of Attorney has been granted it continues until it is revoked either by death Notice of Revocation (a letter to the Attorney stating that you do not want him or her to act anymore) or (with the exception of an Enduring or Lasting power) the donor becomes mentally incapable.
There are various types of Power of Attorney:
• General Power of Attorney. This is a general power given to another to deal with any matter that you could deal with yourself.
• Specific Power of Attorney. This appoints the Attorney to act on specific instructions or in connection with specific matters (i.e. the sale of property).
• Enduring Power of Attorney. These powers are only valid if made before 1 October 2007.
• Lasting Power of Attorney. These are specific powers under the new Mental Capacity Act which, once registered, remain binding even after the Donor has become mentally incapable.
Only Enduring or Lasting powers of attorney continue to be effective after the donor has become mentally incapable
The reference data resource Online Will
