Why is it important for me to make a will and what are the essential elements of a valid will?

If you die and you have made a will, it’s clear how you wish your assets to be divided. This is important if you want to specify particular items, property or specific amounts to different people or organisations. This is not to stay that you can refuse or bypass legal entitlements (spouse or child) in your will, which is protected in the Succession Act 1965 (legal rights shares for spouse or children). This act clearly dictates the division of assets in order of relationship to the deceased person. If no living relation exists after your death, your assets go to the state.
The person making the will must be of sound mind and character and be over 18 years old. If this is contested in the future, the burden of proof is on the person contesting to prove otherwise.
 A will must be in writing – not on video, cassette or e-mail. It must be signed and dated at the very bottom of the document by the person making the will. The witness doesn’t have to see the content of the document – they need only see the person signing the document. Two independent witnesses must see the document but these witnesses are not entitled to gain from the will. If they do the will remains valid, but they will lose all of their entitlements.
 If a will doesn’t cover the distribution of all property or assets, the remaining asset distribution may be by means of partial intestacy or natural succession). If a will is not valid, the rule of intestacy applies i.e. no will = natural succession.

I wrote a will when I was single. I have just got married. Is the will still valid? If we separated would my wife still be my spouse for inheritance purposes?

A will changes upon marriage and becomes null and void, as marriage changes the legal right share of either spouse and/or children.
A spouse is still a spouse upon separation. Clauses may be written into the separation agreement excluding the other party from access to inheritance, but they may be challenged. Divorce is the only legal proceeding that removes the legal right share of a spouse. However, even in such a situation, limited exceptions may apply).

A friend told me that I must appoint an executor or administrator at the time of writing a will. What exactly do they do?

You don’t have to appoint an executor at the time of writing the will, although it is advisable, as complications and additional costs may be incurred. The executor or administrator carries out the wishes of the deceased (via their will). The executor must be over 18 years of age and must not suffer from any physical or mental disabilities. Firstly, the executor or administrator must prove a valid will exists by providing a copy to the probate office and seeking a grant of representation through the probate office to carry out the administration of the will.
 All assets are frozen after death – except joint accounts if one party is still living. The executor or administrator must ensure to pay off any outstanding debts as soon as possible after the person has died. Any property or assets lie in the control of the executor or administrator during such procedure and they can sell any assets to release equity to clear debts and distribute gains among the beneficiaries of the will. They should also ensure any assets are preserved and protected before distribution.

What is probate and should it be used in all cases, even if no will exists?

An application for a grant of probate must be made to the probate office in the area in which the person died. The application is made by the executor or administrator and the following documents are forwarded as required:

• Notice of application – this ensures no second application is made
• Copy of the will – valid legible copy and any additional documents
• Oath of executor – a written statement signed by a practising solicitor or Commissioner for Oaths to agree to pay all outstanding debts
• Death Certificate
• Revenue affidavit – document including all assets and liabilities at the time of death of the person. All beneficiaries must also sign a document stating all gifts received by them

Other documentation may be required depending on the validity of the will. A grant of probate should be carried out in all situations regardless of whether there is a will in place or not.

Can I change my will? Is there a limit to the number of times I can change it in future?

It’s presumed any changes to the original will, that are not subsequently signed and witnessed, are invalid. You can change a will, even the original, but every alteration must be signed and witnessed. It is advisable, therefore, to revoke your first will and write another, or add additional pages to the original.
 In changing the will, you must state the new will is the final will. Alternatively, you can destroy the original will if the new will states all previous wills are cancelled.

My cousin died without making a will. I am not sure if I am the only living relative. Am I entitled to her estate? What should I do?

Firstly, it’s important to ask the following questions, in order of sequence, to understand fully the rule of natural succession:

• Was she married?
• Did she have any children?
• Are her parents alive?
• Did she have any brothers or sisters and did they have any children
• Are her grandparents still alive?
• Are there any aunts and uncles alive?
• Are there any great grandparents alive?
• Are there any grandnephews or grandnieces, grandaunts or granduncles or first cousins?

It may be advisable to draw a family tree starting with the deceased. Then follow the lines of living relatives up and down the family tree. It is important to determine the degree of relationship between the deceased and living relatives. The person with the lowest degree of relationship (i.e. the ‘closest’ relationship) to the deceased will inherit. If two relatives of equal degree exist, the sequence above gives priority. – (what is the sequence above?)

My mother married 30 years ago. Her first husband died 20 years ago and during that time they had three children. She later remarried and had four children with her current husband. He never officially adopted her first children, as at that time it was too expensive. Her second husband died without a will. Do her children from her first marriage have any inheritance?

The first children, although raised as his children, have no direct entitlement to his succession, as they were not officially adopted at that time. Therefore, in this situation, his wife is entitled to two-thirds and the children from his marriage are entitled to one-third between them.
 Children, when adopted and/or born outside marriage, have the same entitlement as children naturally born or born inside marriage.

TEXTBOX

What if a person dies in debt?
It is important to assess fully all assets at the time of death, even if the person was insolvent (no cash or reserves). The sequence of priorities is laid down including (in the following order):

• Funeral costs
• Secured creditors (mortgage providers)
• Rates or taxes
• Wages or salaries (if an employer)

Therefore, any outstanding creditors can only reclaim costs from the estate remaining. Relatives bear no personal liability for any debts over and above assets of the estate.

Pull Quotes
“A will changes upon marriage and becomes null and void, as marriage changes the legal right share of either spouse and/or children.”

 “Children, when adopted and/or born outside marriage, have the same entitlement as children naturally born or born inside marriage.”