May 30, 2016

A few weeks ago, we learnt that the 'Purple Rain' singer, Prince, had an untimely death. To everyone's surprise, it has now been discovered that he may have died without making a will.

A will is a formal document which constitutes a legally enforceable declaration of, among other things, how a person wants his property or assets distributed after his death.

Where an individual dies without leaving a will, he is said to have died intestate. In such a case, the administration of his estate becomes quite complicated as it involves a lengthier process and the distribution of his real and personal properties will not be distributed in accordance with his desires, but, rather, falls to be determined by law.

Where, however, an individual dies leaving a valid will, he has given himself the opportunity to decide who will be in charge of the administration of his estate, who should benefit from his assets and what should happen to his remains. Therefore, it is advisable that everyone makes a valid will, regardless of how much assets he owns.

For a will to be valid, it must satisfy the provisions of the Wills Act ('the Act'). These are some of the provisions:

1. You must be at least 18 years of age.

According to Section 5 of the Act, a testator (the deceased person who makes a will) must be at least 18.

2. A will must be in writing.

Section 6 of the Act stipulates that no will shall be valid unless it is in writing. This requirement has been interpreted very liberally by the courts. Wills that have been handwritten, typed or printed have been accepted by the courts. A will may be written in pen or pencil, it can be in any language and be written on any material. However, it is strongly recommended that it be written in ink or typed on durable paper.

3. A will must be signed

The testator must sign his will and should ensure that his usual signature is used. In some instances, where, for example, a testator is blind or unable to write, his signature can be in the form of a mark provided that he intended it to represent his signature. The testator's signature ought also to be placed at the foot or end of the will. A will may be signed by some other person on behalf of a testator, provided that this is done in the presence of the testator and at his or her direction. This typically occurs where a testator is blind, is unable to read or write, is ill or suffers from a disability.

4. Will to be signed or acknowledged in the presence of witnesses.

A will must be signed in the presence of at least two witnesses (not beneficiaries) who should be present at the same time.

In the event that the will is already signed by the testator, the testator must acknowledge that the signature is his signature and he must do so in the joint presence of the subscribing witnesses.

The witnesses are required to attest (i.e., witness the signature of the testator) and subscribe (i.e., sign) the will in the presence of the testator. It is not necessary for the witnesses to know the content of the will, but they must see the testator sign or the testator must acknowledge his signature in their joint presence.

While the Act does not state where on the will a witness should sign, it is best that the signature is placed close to or just below the signature of the testator.

5. Appointment of executors

It is required that an executor is appointed in the will and it is advisable to appoint more than one. Executors have the responsibility of collecting and distributing your assets according to the instructions in your will and you should therefore choose persons who are honest and reliable. Most importantly, it is best to have your executors' agreement to being appointed, as this will help to prevent complications in the future.

Next week, we will continue to focus attention on the making of a valid will. In the meantime: Remember, it's NEVER too early to make a will!

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