Phrases like “Mammy say the house was for me” or “Grandpa did say I was to get the van and the land in the back” are not uncommon phrases to be heard within communities as expressed by family members and even friends of a loved one after the loved one has passed away. Far too often, we see and hear of situations where after the death of a person, there is contention, and even physical fights among surviving family members and friends over the assets left behind by the deceased. These assets left behind by the deceased are collectively referred to in law as the Estate of the Deceased.
While the process of preparing a Will may seem daunting, preparing a Will which sets out your desire for the distribution of your assets after death does have significant benefits, the primary benefit being the minimization of potential conflict among loved ones over your estate after death.
WHAT IS A WILL & WHAT CAN I INCLUDE IN IT?
A Will is a legal document that outlines how a person's assets should be distributed after their death. The person who prepares a Will is called a Testator and such person can include any asset or property they deem valuable to them in a Will to be distributed to a beneficiary or beneficiaries after their passing.
Some common assets often included in Wills are:
- Real estate such as houses
- Land and commercial buildings
- Businesses
- Vehicles
- Money and/or savings held at banks and other financial institutions
- Stocks and shares,
- Jewelry
- Artwork
It should be noted however, that in some instances where property is jointly owned by the Testator and another person, the property cannot be legally distributed by way of a Will as the law of survivorship takes precedent in such circumstances and the deceased’s share in the property instead automatically devolves to the surviving co-owner(s) of the said property. However, persons who own property as tenants in common can leave their share of the property to a named beneficiary in their Will.
LEGAL REQUIREMENTS FOR PREPARING A WILL
For a Will to be legally valid, the following legal requirements must be satisfied:
- The testator must be at least twenty-one years of age.
- The testator must have the intention and mental capacity to make the Will. This means the testator must be of sound mind. A medical report from a doctor may prove this.
- The Will must be written. It is not sufficient for one to tell his family member or friend that he is desirous of that person having ownership of their asset(s) upon their passing since expressing this desire does not and cannot have any legal effect.
- The words contained in a Will must be legible.
- A Will must include the Testator's and witnesses’ name, address, occupation, and the date on which the Will was prepared.
- The Testator must identify one or more Executors by name and address. An Executor is the person or persons appointed by the Testator to administer the Will and fulfill its terms. An Executor is also responsible for settling any debts or addressing any liabilities which arise against the deceased’s estate. Given the key role to be played by an Executor, a Testator should ensure that he or she carefully considers who to appoint to administer their Will as such person should be one that the Testator trusts to ensure that the terms of his Will are efficiently and effectively fulfilled. A Testator may legally appoint up to four Executors in their Will, but this is not mandatory.
- A Will must also identify a Beneficiary or Beneficiaries by name and relation to the deceased. A Beneficiary is any person who is named in a Will by the Testator to receive assets from the deceased’s estate upon his or her passing. It should be noted that it is legally permissible for a Beneficiary to also be appointed as the/an Executor of the Will.
- A Will must include a Residuary Clause. The Residuary Clause treats with the remaining assets of the deceased’s estate which had not been specifically identified or addressed in the Will. The Residuary Clause also accounts for any asset which may have come into the possession of the deceased after the Will was prepared or any benefit owed to the deceased which may have only been finalised after death for example pension or gratuity payments.
- A Will must be signed at the end of it by the Testator in the presence of two witnesses who must also sign the Will, after the testator, in the presence of each other and the testator. It is essential that neither witness is a beneficiary named in the Will, as any gift made in their favour would fail and would not pass to them.
A Will is therefore a critical framework that ensures the proper distribution of assets. Individuals who have inquiries about the process should consult with a professional on how to proceed.
Submitted By:
Mariesel Davis
Legal Officer
Civil Legal Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email:
Website: www.laaa.org.tt
This article is not legal advice. Consult an Attorney for legal issues
