WILLS

By ANYA ROSS

Dated: 19/10/2024

Wills are a good way of ensuring that your assets and property that you possessed when you were alive are dealt with in the way you intended. 

However, for your will to be deemed valid under the law, it must adhere to the formalities required under the Wills and Probate Act 1945. 

This Article, therefore, aims to set out said statutory requirements and explain the rules governing the validity, construction, revocation and alteration of wills. 

WHEN IS A WILL VALID???

Firstly, we will examine what are the formalities required for a will to be valid under the Wills and Probate Act 1945.

Under s.42 of the Wills and Probate Act 1945, for a Will to be valid it must:

          1. Be in writing

          2. Be made by a person 21 years and over

          3. Be signed by the testator, i.e., the person making the will, or by some other person under the testator's direction and in their presence. This signature is to be inserted at the end or foot of the will. 

          4. The testator or some other person under his/her direction must sign the will in the presence of two witnesses. The signature of the witnesses must be in their own proper handwriting and cannot be identified by a mark or cross.

WHAT GOES IN THE WILL???  

Next, we will look at the contents of the will. All wills must contain the following:

         1. Your Personal Information:

This includes your full name, address, and occupation.

          2. The Executor:

This is the person who you appoint to deal with your assets the way you stipulated and intended in your will. By law, you can appoint up to four (4) executors.

Their full name, address, and relation to you are to be included.

The duties of the executor can be very tedious and costly. As such, it is important that you appoint someone whom you can trust and who would be able to undertake the various duties and obligations associated with an executor.

Under s.46 of the Wills and Probate Act 1945, the Executor can also be a witness.

          3. Your property and assets:

This includes any property that you own such as cars, houses, land, clothing, jewllery, etc. 

However, if you own property jointly with another, that property cannot validly be gifted or transfered through the will. This is in accordance with the rules of joint tenancy which stipulates that upon death of one of the owners of the property, the deceased's interest will automatically be vested in the survivng owners.

          4. The Beneficiaries:

These are the persons you are gifting your property and assets to. Their full name and address and relation to you are to be included. 

The executors can also be beneficiaries. 

          5. Witnesses:

As stated above, the will must be signed by two witnesses. In practice, the witnesses occupation and addresses accompany their signatures. 

However, under s. 45 of the Wills and Probate Act 1945,  neither the witnesses to the will nor their spouses can be named as a beneficiary. If any of the witnesses and/or their spouses are named as a beneficiary, the gift/s devised to them will fail. 

SIGNING

Apart from the two witnesses, the testator or someone else, under their direction, must also sign in front of the witnesses. The will must also be dated on the day that the testator and the witnesses signed it.

LODGING OF THE WILL

You can lodge the will in the Probate Registry for safe keeping. However, this is not mandatory.

WHEN WILL A WILL BE REVOKED?

So, after understanding the formalities of a will, when a will is deemed valid and the contents needed in a will, it is important to understand the circumstances in which a valid will can become revoked or cancelled.

Under s.48 of the Wills and Probate Act 1945, a will is revoked by the marriage of the testator. In other words, if the testator is married but their spouse was not named as any beneficiary in the will, the will is deemed revoked/ cancelled by said marriage. Consequently, the distribution of the estate will flow from the order of intestacy, with the spouse having first priority.

Section 50 of the Wills and Probate Act 1945 provides another circumstance in which a will becomes revoked. Under this provision, a will can be revoked by: 

     i. the making of a new will provided that this new will complies with the formalities required under the Act; or

     ii. by anything in writing that declares an intention of the testator to revoke the will.  

The consequence of the revocation of a will is that it can only be revived upon re-execution of the will or by the execution of a written document that is to supplemental the will and which states that the intention is to revive the will per s. 52 of the Wills and Probate Act 1945.

ALTERATIONS OF A WILL

What if the will is altered, or some of the contents are erased and or new terms are inserted?

Well, s.51 of the Wills and Probate Act 1945 provides that no such alterations etc that are done after the execution of the will shall be admitted to probate or have effect unless:

     i. the words or effect of the will before the alterations were not apparent or

     ii. the said alterations etc were executed in the same manner as is required for the execution of a will.

Additionally, the will is still deemed duly executed if the testator and the witnesses were made in the margin or next to said alterations etc.

COST

At our firm, the cost for the drafting and preparation of a will starts at $1,500.00.

REFERENCES

Wills and Probate Act 1945