Know Your Rights - On writing a will

A WILL is a document which contains the wishes of a person which takes effect upon the death of the person who executed the will. There are specific requirements of formalities for a will to be valid. In addition, the wishes of the person who executed the will must be very clear as to his intentions and practicality to provide for any eventualities that may take place.

This article attempts to explain relevant issues a person should consider while having the will drafted and executed. Unlike other legal documents executed which may be amended at any time, since a will takes effect only upon the death of the person making the will, there will be no opportunity for any correction or rectification. This document should therefore be simple to understand and clear in the meaning of the words used so that there is no ambiguity.

A badly drafted will is worst than no will being written as it gives rise to potential and possible conflicting interpretations of the will and the law on intestacy may take over and may further give rise to complications on how to administer the estate of the deceased.

A proper will contains among others the following clauses:

(a) A clause to say the person is in a sound state of mind and revoke all previous wills (if any) and this will currently executed is the last will;

(b) A clause to say who is to be appointed as executor and trustee of the estate of the deceased whether natural person or persons or a trust corporation;

(c) The appointment can be joint or several. It can be by order of preference or in substitution when a named executor or executors refuses to act or relinquish his right to act.

A paragraph to state what specific asset or assets as a gift to a particular beneficiary or group of beneficiaries and any condition attached to the gift if the beneficiary or beneficiaries is entitled to it.

Another typical clause will have details of the particular asset or assets like land titles, bank accounts, shares, unit trusts or motor vehicles. The more details stated the better so that it would be easier for the executor and the solicitors filing for the application for the grant of probate.

If the details in the will are not elaborate enough, the executor(s) will need to obtain the relevant details from available sources and include such details in the filing of the application which can be time consuming and may not be the true and actual intention of the will.

There is a need for a residuary clause whereby the remaining assets owned by the deceased is to be distributed. This "catch-all" provision is to provide for any assets which may be owned by the deceased at the time of death.

To facilitate the administration and distribution of the estate, it is preferable that all the assets are converted into money value and be divided and distributed accordingly. Otherwise, it may appear unfair to a beneficiary or beneficiaries.

If the executor refuses to act, he can apply to the court accordingly so that he is excused from acting and the remaining or subsequent executor can take over the role and function.

The cardinal rule is that anyone who is a beneficiary of the will cannot be a party who witnesses the execution of the will. This is to prevent any possibility of the will being altered.

To prevent possible tampering of the will after its execution, the party executing the will and the two witnesses have to sign their full signatures on every page of the will. The original copy of the will should be inserted into an envelope and sealed with wax. In this manner, any attempt to tamper with the will can be detected.

Since the will takes effect upon the death of the party executing it, the contents should be kept confidential until after the party who made the will had passed away. Otherwise, there may arise a situation whereby a certain beneficiary or beneficiaries who are not happy with the contents of the will may attempt to convince the testator to review and change the contents of the will or have the will destroyed. It may also cause friction among the beneficiaries due to their perception of what is fair or unfair of the gifts under the will and may lead to possible conflict among the executors and beneficiaries which will result in an unhealthy family environment.

Although anyone can draft or prepare a will for execution, to quote the view expressed by the author in the book Parry and Clark, The Law of Succession "The draftsman of a will needs a sound knowledge of the Law of Succession."

The writer, formerly a banker, is a lawyer. Comments: