A Will is a legal document which expresses in writing your wishes as to how your estate should be distributed in a manner which is recognised and given effect by law.

Formal Requirements Of A Will

A Will must have the following features:-

·                    The Testator (person making the Will) must be of 21 years of age and of sound mind;

·                    It is in writing and signed by the Testator;

·                    The Testator intends by his or her signature to give effect to the Will;

·                    His or her signature is made in the presence of two or more witnesses at the same time; and

·                    Each witness signs on the Will in the presence of the Testator.

A Beneficiary Should Not Be A Witness

Under Section 10 of the Wills Act. Cap.352, if a beneficiary or his wife or her husband is a witness to a Will, then the gift to the beneficiary under the Will shall be void.

Effect Of A Will Made Before Marriage

Section 13 of the Wills Act, Cap. 352, provides that a Will shall be revoked upon a person’s marriage.  In other words, if you have made a Will before your marriage or re-marriage, that Will shall be invalid and you should make a fresh Will.

Benefits of Making A Will

A Will is a crucial part of your personal estate and financial planning.  By a Will you:-

·                    choose who to appoint as Executors of your Will, namely, the trusted person or persons who would take care of your personal affairs and assets after you are no longer around;

·                    choose whom you wish to leave your specific assets to, or generally, and in what proportions;

·                    can appoint guardians and trustees if you have children below 21 years old, to look after their interests until they reach 21 years old;

·                    can make gifts to charitable organisations for worthy purposes;

·                    can make gifts to your private trust(s) for protection of your assets for your beneficiaries.

Effects of having no Will

On the other hand, if you do not make a Will, your assets in your estate may be distributed in a manner which you may not wish for.

Under the Intestate Succession Act, Cap. 146, your estate would be distributed in the following scenarios:-

·                    All goes to your surviving spouse if you have no children and no parents (surviving).

·                    Half goes to your surviving spouse and half to your children (in equal shares amongst the children), if you have children.

·                    Half goes to your spouse and half to your parents (in equal shares) if you have no children but have surviving parents.

·                    All goes to your brothers and sisters and the children of deceased brothers and sisters in equal shares, if you have no surviving spouse, children and parents.

·                    All goes to your grandparents if you do not have any of the persons surviving mentioned in the sub-paragraph above.

Failure to make a Will means that you have not specifically named and appointed executors to handle your estate, and the uncertainty of who your beneficiaries are may arise.  This may sometimes result in disputes amongst your next-of-kin, beneficiaries and family members, resulting in delays in the administration of your estate. 

In a worse-case scenario, costly Court battles may ensue as a result.  In a contested administration matter, legal costs are likely to be paid out of the estate under the Rules of Court, thus depleting your hard-earned assets which would otherwise have been available for distribution to your properly-intended beneficiaries.

Do Not leave it to the last!

Do not defer making a Will until the last moment.  In a number of cases we have seen, individuals have left it till the last moments of old age or terminal illness before scrambling to make a Will. 

The law requires that a person must have the mental capacity and understanding to make a valid Will.  Hence, in those situations, before a Will can be executed, lawyers will require a medical report to substantiate that a person is of such sound mind as to be able to make a Will. 

In the absence of that, the Will cannot be proceeded with.  If it is proceeded with, it may be liable to be challenged on the grounds of mental incapacity, or sometimes, allegations of undue influence asserted by certain parties, on the Testator.

Alterations To a Will

Alterations made on the face of a Will are generally invalid.  This is because the words of a Will are deemed to be fixed at the time of execution of the Will, and it is difficult to determine whether the contents of the Will were altered before or after it was signed.

If changes to a Will are desired, it is advisable to do so by:-

·                    executing a fresh Will with proper formalities, or

·                    executing a Codicil.  A Codicil is suitable if the changes are not too substantial.  It makes reference to the Will, but the Will will be deemed to be republished or executed on the date of the Codicil, instead of the original date of the Will.

Mutual Wills

Mutual Wills are Wills executed by two persons, usually husband and wife, whereby both agreed, usually in identical terms, to leave all their property to each other in the Wills, and that should one die, all the property including that belonging to the deceased one will go to their children. There will also be the further condition that neither party will change the Will or make a fresh Will with different provisions even after the other has passed away.

Conclusion

In the light of the above issues, it would be advisable for you to periodically review the contents of your Will, if you have done one.  If you have not, then do not leave it to chance. 

Consult a lawyer soon for the proper advice, and to have a Will made to express your wishes and to make the necessary provisions for your loved ones who would be grateful that you did.