How To Prepare a Will to Manage Your Estate
You are willing to plan and secure that your estate will be passed to the beneficiary(ies) you chose, but you are wondering how to implement your wishes. The preparation of a Will can ease your mind. A Will is a document that sets in legal terms, how the will-maker’s estate will be managed after his or her death. A Will must be diligently and precisely worded in order to ensure its effective enforcement. This article aims to outline the important components, laws and regulations related to Wills, by answering the following questions:
- Why create a Will?
- How to create a Will?
- Is it possible to amend, or revoke a Will, once executed?
- Can a Will be cured or rectified?
1. Why Create a Will?
After one’s death, the deceased’s assets will be passed on pursuant to the law. There are two possible options, Intestacy, or an estate with a Will. Only the assets that form the deceased’s estate can be passed by Will, to that person’s Will beneficiaries. Furthermore, the deceased’s estate only contains the direct property owned by the deceased at the time of death. Therefore, it is crucial that a will-maker is aware of his or her exact ownership of the estate properties. The will-maker must have complete dominion, control and beneficial interest in the assets in order to pass them by Will.
The following assets can be included in a Will:
i. tangible personal property;
ii. intangible property; and
iii. real estate interests.
Further, a Will is deemed effective, when the will-maker has:
i. intended to give the Will a dispositive effect;
ii. intended the Will to take effect only after his or her death;
iii. indented the Will to be revocable; and
iv. complied with the requirements of WESA.
A Will is beneficial as it allows the will-maker to customize how his or her estate will be passed on. A Will also provides the security that the will-maker’s wishes will be followed after his or her death.
Intestacy occurs when a person dies without a Will. Likewise, if only part of an estate is passed on by Will, and part of the estate is left aside, the will-maker dies partially intestate. Intestacy is regulated under Part 3 of WESA, which sets out how the deceased’s property is distributed among the deceased’s descendants.
2. How to Create a Will
A will-maker must be at least 16 years old and mentally capable to create a Will.
A Will must comply with the following formal requirements:
i. a Will must be in writing;
ii. the will-maker must sign the Will at its end, or the will-maker must acknowledge the signature as his or hers, in the presence of two or more witnesses; and
iii. two or more of the witnesses must sign the Will in the presence of the will-maker.
At least two witnesses must be present and sign the Will at the time of execution. A signing witness, should not be benficiaries under the Will, and must be at least 19 years old. It should be noted, that gifts to beneficiary witnesses are no longer deemed void prima facie; however, a curative court application is required, where a beneficiary acts as a witness to the Will.
Wording a Will is a delicate endeavour because it requires usage of a specific language and exactitude.
Depending on the will-maker’s estate planning, a Will can be generically structured as follow:
The will-maker states his or her date and place of birth, and current address.
If the will-maker previously executed a Will, he or she must revoke it.
iii. Family declaration
The will-maker declares his or her marital status and the number of children he or she has, if any.
iv. Executors and trustee
The will-maker designates the executor and trustee who will execute the Will and manage the estate. Because the first named executor and trustee may either predecease the will-maker, become unable or unwilling to execute the Will, it is preferable to name alternate executors and trustees to act in place.
v. Disposition of estate
The will-maker gives and appoints his or her estate to the trustee. The will-maker decides to whom the trustee must give the estate. Hence, the disposition of estate organizes who becomes what, and how. The will-maker may as well anticipate the becoming of his or her estate in case a named beneficiary predeceases or does not comply with the conditions of the disposition of estate.
vi. Administration of estate
The will-maker gives the trustee various powers to administrate the estate in different contexts, as for example, minor’s trust, real property, businesses, etc…
A Will may contain other clauses pertaining to definitions and interpretation, mutual Wills, debts to be paid, guardianship, or remains.
3. How to Alter a Will
To alter a Will, a will-maker can either:
i. execute a new Will with the desired changes;
ii. execute a codicil, which is a document that amends the original Will; or
iii. make an interlineation, which is a physical change to the existing Will. The will-maker either deletes or adds words. However, the will-maker should avoid interlineation because its legal validity is questioned.
A will-maker can revoke his or her Will in different ways,
i. by executing another Will;
ii. by executing a written declaration;
iii. by directing to burn, tear or destroy all or part of the Will;
iv. by conducting any other act, that the court will deem as the will-maker intended both the act and its consequences.
If a will-maker has revoked his or her Will, he can revive it by executing another Will, showing the intention to give effect to the revoked Will. However, if at first, only part of a Will was revoked, and then the Will as a whole was revoked, a will-maker who revives the entire Will, will not revive the part first revoked.
4. Can a Will be Cured or Rectified
If either the creation, alteration, revocation or revival of a Will did not comply with the provisions stated above, one can seek a court order to cure the Will. The court may order that the record in question be fully effective, regardless of the fact that the will-maker did not fully comply with part 4 of WESA.
If a Will fails to carry out the will-maker’s intentions, because of an error, misunderstanding or a failure to follow the will-maker’s instructions, one can apply to the court for a rectification order.
In preparing a Will, one must not only comply with the strict requirements of Part 4 of WESA, but also have the skill to use the appropriate language in wording the Will to secure the will-maker’s intentions.