WILLS: A GUIDE

Naturally, contemplating our death sometimes in the future is quite unpleasant, to put it in understatement. But the suppression of this issue brings the consequences of unawareness of many to the fact that their final departure from this world usually creates the greatest deal that they'll ever take part in: in one moment they will hand their full ownership of their property over – and the question is to whom. That is why one should give thought every few years to the matter and ask himself or herself if the time for making a will, or updating a will that already exists, has come

01/09/2010 | Practice field: Family Law

The act that is relevant to wills and inheritance is the law of succession (1985). The juridical case here is that the main character is not present and we cannot know and be absolutely sure what had the deceased wished for.

Hereditary succession

The act instructs two ways of committing the succession: the first one is by will, the second, in a case of intestate, by the hereditary succession, which is ab intestat (written by the law), the successors' consanguinity being in a degree related to the devisor.

And when there are no successors?

In case the devisor had no relatives as the law specifies or was spouseless the legal heir would be the state's treasury. The legislator wishes to prevent a situation in which property is left ownerless. And so the deceased's property is committed to the state. The act statutes that these properties will be used for education, science, health and relief. In some cases the Minister of Treasury allows the endowment of the bequest to those who where the deceased's dependents.

A will

Only by making a will legally can the devisor be assured that after his or hers passing their wishes about their property would be fulfilled. As long as one acts by the law, the possibility of executing the testament by oneself does exist. But I recommend letting a professional (i.e, an advocate) dealing with the making of a will. An advocate can forecast cases that one might overlook, cases that can bring the resolution of issues regarding the commentary of the testament. Not only that the making of a will fulfills the true wishes of the devisor but it also cuts back on the successors' expenses and prevents any further grief, for they need not trace the properties and assets of the devisor.

Types of wills

There are four categories. A will validates when all formal conditions are kept. In that case the applicant who wishes to deprive it must undertake the burden of proof. When all formal conditions are not kept the applicant who wishes to validate it must undertake the burden of proof.

Handwritten will (clause 19 inthe law of succession act)

"Easy to make" and the most authentic. All that is needed to produce it is blue ink pen handwriting, the devisor's signature and the date of preparation. No witnesses are needed.

Will in presence of witnesses (clause 20 inthe law of succession act)

Must be handwritten or printed, should bear the date of preparing, the devisor's signature in the presence of two witnesses and their signature also.

That is the most common will and it is made by an advocate. The devisor should declare that the will is his, and the witnesses should declare that the deceased had had made his declaration in their presence. This declaration must be handwritten, for it is not enough that the declaration being nuncupative.

A will taken by the authorities (clause 22 inthe law of succession act)

The 'authority' here is a static component. The devisor appears before the authority, who makes a record of the will and reads the written document. No signature needed. It seems that that type of a will is the most substantial one for its psychological aspect.

The meaning of 'authority' is: a judge, a court registrar, inheritance registrar and a notary (whose absoluteness is weaker).

Death-bed testament (clause 23 inthe law of succession act)

In contrast of what many tend to think, a nuncupative will should be made only when the testator faces death (death-bed). Death-bed comes into consideration only when the deceased had had faced death, a discretion that should be based on individual judgment only. That means that the deceased had believed, while in the quality or state of being just and unbiased, that he or her were facing death.

Hereunder some recommended rules that one should observe while making a will

One that is counted the beneficiary should not be present while the will is being prepared and should not act on any case, directly or indirectly, in its preparation.
An alteration in the will can be made and one cannot put this into question. It is meaningless to write that a future alteration should not occur, and it is important to change a will when necessary, i.e. when another offspring comes into the world it is important to add his or her name to the will in order to turn he or she into beneficiaries.
Let the maker of the will be an aged or an ill person it is necessary for him or her to hold a medical opinion stating his or her eligibility of making a will in order to prevent any claims for testator's lack of juridical eligibility, unjust influence etc. The verification of these claims might cause the invalidation of testament.
According to clause 43 in the law of succession act the testator is permitted to order that a successor attains the former's bequest, all of it or part of it, when a certain condition is undertook or a certain time has arrived. For instance, the testator can order that his or her grandchildren would claim bequest not until arriving at the age of 18. In that case, their share of the bequest would be conducted by the estate administrator appointed by the inheritance registrar or by the Family Court. One who wishes to make a will 'on condition' should put the condition under juridical examination in order to test its rational. If the condition is found unreasonable one can put it into cancellation.
The testator may order in the will for anything that the successor should do or should be prevented of doing with the part of the bequest. For instance, the testator may order the beneficiary to make sure that a book should be written in his remembrance in order that the beneficiary might make benefits from the bequest.
One should bail the will by the inheritance registrar. This bailment makes a sort of announcement that the will does exist and that the inheritance should be divided by it, unless it is proved that a new or later will does exist.

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