CURRENT LEGAL ARTICLES

  

WHAT IS A WILL?

A will is a written document created by a person of what they want to be done after their death and relates to the distribution of their property. On your will, you will be identified as a testator/ testatrix. The law in relation to this area is set out in the Succession Act 1965.Your will must be created by a legal professional. 

If you create a valid will, you will die testate. This means that your property will be divided according to your own terms. If you do not make a will in your lifetime or it is deemed not to be legally valid, you will die intestate. This means that your property is divided under the rules, found in Part VI of the Succession Act 1965.

  

PROCEDURE:

In the unfortunate event of a person’s death, their property will go to their personal representative. If they made a will during their lifetime, their personal representative would be the will’s executor. If a will is not made, the administrator will be the personal representative for your will. 

Firstly, your personal representatives must get a grant of representation. This validates their position. The grant is labelled as a grant of probate. This validates the work of executors and a grant of letters of administration where it appoints administrators. 

Your personal representative will own the estate to distribute and administer it. S.13 says if no will is made, the property will go to the President of the High Court until an administrator is arranged.

WHAT DOES A PERSONAL REPRESENTATIVE DO?

Your personal representative must pay the funeral, testamentary admin, and other charges. S.46 says that your personal representative will remove any debts and liabilities you have. Upon completion, they will administer shares to the beneficiaries. They have a full year to comply with this. Despite this, s.62 says creditors can act before the year is out. Sections 52 to 54 outline that your property will be given to the beneficiaries.  The High Court has powers under section 26(2) to cancel a grant of probate if they feel there is extreme misconduct and any conflicts of interest. 

  

TESTATE SUCCESSION:

Sections 77 and 78 of the Succession Law Act 1965 outline the requirements for a valid will. They are as follows:

1) Capacity

Section 77 requires that you have the legal capacity to make a valid will. Section 77(1)(a) explains that you must be 18 to make a will. Despite this, a person under 18 who has been married can make a valid will. 

Additionally, section 77(1)(b) requires you to be of sound disposing mind. This means that you understand that you are creating a will, who is going to benefit from your property, free from any mental illness that may affect your will, and appreciate the claims you are making.  Also, a choice may not be valid due to undue influence. The burden of proof is on the person saying there is undue influence. Evidence of actual pressure or threats is needed. 

2) Writing 

· Section 78 requires that you will be in writing. This can be a pen, pencil, crayon, or print.

3) Signed 

· Section 78(1) requires you to sign your will at the bottom of the page. If you cannot sign your will for a valid reason, it can be signed by another person in your presence or by your direction. 

· You should not worry if you have trouble reading and writing as case law suggests initials and stamps are sufficient as a signature. 

4) Witnessed:

· Section 78(2) requires that your signature must be witnessed by two people at the same time. After your signature, the two witnesses must sign the will saying that they witnessed the signing. 

· The witnesses do not need to know the contents of your will, and their signature must not be

·  influenced by personal gain; for instance, s.82 says they cannot receive a gift under the will they witnessed.