Importance of a Last Will and Testament

We all understand the importance of making a Will, which can help minimise the stress, financial issues and disputes which our family may face should something unfortunate happen. In particular, a Will is essential if you have children or grandchildren you want to take care of. Yet the majority of us do not have a Will in place to give our family peace of mind.

There are the usual excuses for not making a Will – e.g. “I don’t have the time”, “I cannot afford the legal fees”. Yet it is perfectly legal to make your own Will at home (especially if your family situation is relatively straightforward).

What makes a Valid Will?

A Will is valid so long as:

it clearly states your intention in the distribution of your estates;



you sign and date the Will in front of two independent witnesses (both of which are present at the same time) who are not beneficiaries under the Will; and



you have the mental capacity when making the Will and are not under any undue influence or duress.





A Will does not need to be legalistic, on any special paper, or signed and sealed by a lawyer. Rather than worrying about the legal language, the following are the ten issues you should consider when making your Will:

1. How many Wills do you need?

First thing you will need to ask yourself is – what is your domicile?

Your domicile governs the law and jurisdiction of the administration and succession of your estate where there are foreign elements involved. It is thus of fundamental importance to determine your domicile and it may not necessarily be your place of residence.

Domicile is the place that is acquired at birth from the father, rather than the place of birth. When you reach the age of majority and have subsequently settled in another jurisdiction with the intention of making it your permanent home, then the place of domicile may change.

Generally speaking, the following rules apply in most Common Law jurisdictions:

“Personal Property” / “Movable Property”

(e.g. money, shares, personal belongings) are governed by the law of the place of domicile as at the time of death. You will need a Will made at your place of domicile. Some countries may require that a certain proportion of your estate be left to the children or the widow even if it is not stipulated in the Will. A new Will is required at your new place of domicile should your permanent home change.

“Real Property” / “Immovable Property”

(e.g. houses, apartments, buildings, land) are governed by the laws of the place where the property is located.

If you own real properties outside of your place of domicile, it is a good idea to have a Will in each jurisdiction where you own the respective properties. Each Will should be drafted as a separate document and be governed by the laws of the jurisdiction of the corresponding real property.

2. Executor(s)

Executor(s) are responsible for administering your estate. For most common law jurisdictions, the executor must be over 21 years old at the time of administering the deceased's estate. Instead of individuals, you may also consider appointing a trust corporation to act as executor(s).

You can appoint up to four executor(s). If so appointed, they must do everything in relation to the Will together. Alternately, you may pick the executors in order of preference to avoid any disagreement (i.e. A, failing which B, failing which C).

You should consult your executor(s) first to determine whether he or she is willing to accept this role before appointing them. When choosing a spouse to be the only executor, you should take into account the possibility that the executor may not survive you or may die at the same time (see “Common Disaster Clause” below).

3. List of Estate Assets, Liabilities and Beneficiaries

In making your Will, you should first make a list of (i) beneficiaries you would like to distribute to, and (ii) all valuable assets and liabilities under your estate.

Beneficiaries

– you will need to list as many details of your beneficiaries (spouse, children, relatives, friends, third parties, charities) as possible in order to properly identify them:

Full Names

Addresses

Birth dates and / or Identification numbers

Assets

– you should list all your valuable assets, including detailed information about the following:

Real properties

Savings (bank accounts, Certificate of Deposits, money markets)

Investments (stocks, bonds, mutual funds, Certificates of Deposit)

Pension/ retirement accounts

Life insurance policies and annuities

Business ownership

Cars, boats, planes and other vehicles

Horses and other animals

Any valuable personal properties

Liabilities

– you should also keep records of amounts of all liabilities, including home mortgages, personal loans, vehicle financing, student loans, business loans, and credit card accounts.

4. Gifts to Non-relatives

You may wish to make specific gifts of money, shares, or real estate to certain persons or charities. Please provide specific details (including name and location) of the third party beneficiaries to enable your Executor(s) to properly identify them.

5. Personal Properties

Personal properties are often left to the spouse. If the Will is silent on this matter, these properties will fall into the residue of the estate and will be sold, with the proceeds forming part of the cash residue.

6. Inheritance by Minors

If any beneficiary of an estate is under the age of 18, the Executor(s) must hold the child’s share in trust (to keep the relevant assets properly on behalf of this child). It is possible to specify an inheritance age later than 18, such as 21 or 25, when it is more likely that the child will be mature enough to manage his or her inheritance. Discretionary powers will therefore be given to the Executor(s) to distribute as much of the income and/or capital for the benefit of the child as the Executor(s) sees fit before the child can formally receive all the assets.

7. Guardianship of Minor Children

You should appoint a person you trust to act as guardian over any children who are minors (below the age of 18) at the time of death. Please ensure that the proposed guardian is properly consulted before such an appointment and provide sufficient contact details of such a guardian. The guardian, however, cannot displace the rights of a surviving legal parent.

8. Funeral Arrangements

Traditionally, declarations for funeral arrangements are included in the Will. They will typically be honoured by Executor(s) and family members. However, if the Will cannot be located immediately, these wishes may be overlooked. As such, it is of vital importance that you let your Executor(s) and family members know of the existence and location of the Will.

9. Common Disaster Clause

This clause is especially important if you have chosen your spouse to be your Executor. A common disaster clause takes into account the unfortunate situation when people may die together (e.g. in the event of a plane crash, natural disaster or terrorist attack). A common disaster clause would deem the couple to have died together and have special arrangements for the distribution of assets and guardianship of the children.

If no provision is made in a Will and a common disaster occurs rendering it uncertain which spouse survives the other, then the younger will be deemed to have survived the elder. In other words, the estate of the elder deceased will pass to the younger of the deceased couple, which will then be further dealt with in accordance with legal regulations. This may result in an undesirable consequence where the family of the younger of the deceased couple being unfairly distributed most of the couple’s assets.

10. Persons with a Disability

When making a Will, consider special trust provisions for a beneficiary who is disabled. For example, a trustee or a guardian to monitor the assets inherited by the disabled person.

Once you have considered these 10 issues, you can ask a lawyer to draft your Will, or you can also try to do it yourself. Below are four forms of Will you may want to use as reference:

Documents When to Use Web Links Last Will and Testament with Spouse and Children Last Will and Testament made by an individual with spouse and children. Give everything to the spouse first, but if spouse died first, give all to children in equal share. https://docpro.com/doc579/last-will-and-testament-with-spouse-and-children Last Will and Testament with Children and No Spouse Last Will and Testament made by an individual with children but no spouse. Give everything to children and their descendants in equal shares. https://docpro.com/doc580/last-will-and-testament-with-children-no-spouse Last Will and Testament with Spouse and No Children Last Will and Testament made by an individual with spouse but no children. Give everything to spouse but if spouse died first, give everything to designated charity / in accordance with the laws of intestacy. https://docpro.com/doc582/last-will-and-testament-with-spouse-and-no-children Last Will and Testament with No Spouse and No Children Last Will and Testament made by an individual with no children and no spouse. Give everything to siblings and their descendants, otherwise give everything to designated charity / in accordance with the laws of intestacy. https://docpro.com/doc581/last-will-and-testament-no-spouse-no-children

Please note that this is just a general summary of the position under common law and does not constitute legal advice. As the laws of each jurisdiction may be different, you may want to speak to your lawyer.