Wills

A Will is a written witnessed document setting out the testator’s wishes as to how his or her possessions otherwise known as the estate is disposed of.

If a person dies without making a will that person is said to have died intestate. The estate in this case will then be disposed of by an administrator in accordance with the law . The rules of intestacy are set out in the Succession Act. That act explains that where a deceased person has left a spouse and children without making a will, two thirds of the estate then passes to the spouse while the remaining one third passes to the children. If there are no children the spouse takes all. Where an unmarried person dies intestate then that estate goes to next of kin.

For a will to be valid the person making the will must be over 18 and the will must be in writing. The testator, who is the person making the will, must be capable of doing so. In other words, the testator cannot be suffering from a mental incapacity or operating under the influence of another person. The testator must sign or mark the will in the presence of two witnesses who must also sign the will in the testator’s presence at the same time as the testator. The witnesses cannot receive any gifts under the will.

The Succession Act confers benefits on spouses of deceased persons. In this situation a surviving spouse has a legal right to a share of the estate. If there are no children that legal share is a half of the estate. If there are children it is one third. This legal right can be renounced. There are strict rules of notification required under the Succession Act imposed on the executor of the will. The executor is a person named by the testator to be responsible for the administration of the estate.

Children have no automatic entitlement to a share of a parents estate. They can however make an application in Court for a share on the basis that the testator has failed as a parent in his or her moral duty towards a disappointed child.

A will can be changed at any time by making a new will amending an existing one or by creating a separate document called a codicil. An existing will is automatically revoked when a new will is made. Revocation is also automatic when a testator marries or remarries. In order to revoke a will otherwise the testator or someone in the presence of the testator must burn, tear or destroy the will with the intention of revoking it. In this case if a will is made without a new one having taken its place then that person is deemed to have died intestate.