Q & A : Drafting a Valid Will

1. What is a will?

In simple term, a will is a document which contains a person’s intentions on the distribution his or her assets at death. Section 2 of the Wills Act 1959 defines a will in technical terms as ‘a declaration intended to have legal effect of the intentions of testator with respect to his property or other matters which he desires to be carried into effect after his death and includes testament, a codicil and an appointment by will or by writing in the nature of a will in exercise of a power and also a disposition will or testament of the guardianship, custody and tuition of any child’.

2. What Happens if I Die without A Will?

If you die intestate:- Your assets will be distributed according to the formulas set out in the Distribution Act 1958, and not according to your wishes of the needs of your family members. The court will appoint a trustee and an executor to administer your estate and this may give rise to disputes between family members or beneficiaries on who should be appointed. The court will appoint a guardian for your minor children and the person appointed may not be your preference. The distribution process will take longer and cost more, ordinarily requiring a bond and the appointment of 2 sureties guarantee the proper administration of the estate as well as further court orders to effect the transfer of real property.

3. What are the Advantages of Having a Will?

Having a will enables you to:-

  • Choose your beneficiaries and how your assets are to be distributed;
  • Choose your trustee and executor to administer your estate;
  • Set up a testamentary trust for your minor children, heirs with special needs or charities;
  • Choose the guardian for your minor children;
  • Minimize the chances of family disputes over property;
  • Speed up the distribution process considerably;
  • Reduce the cost of administering your estate;
  • Express your wishes for your funeral arrangements

4. What makes a will valid?

To make a will valid, you must:-

  • Be at least 18 years old;
  • Be of sound mind;
  • Have your will in writing;
  • Have signed your will;
  • Have your signing witness by at least 2 witnesses who will then sign in your presence and in the presence of each other

5. Can my beneficiaries witness my will?

No, a beneficiary will not be eligible to receive any benefit from the estate if he/she or his/her spouse signs as a witness to the will.

6. How long will my Will be valid for?

Once executed, your will is valid until it is replaced by a new will, revoked in writing or destroyed intentionally. Your Will will automatically be revoked if you marry or remarry, or covert to Islam.

7. Who will inherit my assests under the Distribution Act 1958?

Section 6 of the Distribution Act 1958 sets out various scenarios for intestacy and provides a fixed formula for the distribution of a person’s assets. The following are some examples:-

  • Leaving a spouse, issue and parents: spouse ¼ issue ½ parents ¼
  • Leaving a spouse and parents but no issue: spouse ½ parents ½
  • Leaving a spouse and issue but no parents: spouse 1/3 issue 2/3
  • Leaving issue and parents but no spouse: issue 2/3 parents 1/3
  • Leaving no spouse, issue or parents, then the following persons are entitled in accordance of priority; brothers and sisters, grandparents, uncles and aunts, great grandparents, great uncles and aunts, government.

8. How does marriage or divorce affect my will?

Your will is automatically revoked upon your marriage or remarriage. An exception is where your will expressly provides for expected marriage in a ‘contemplation of marriage’ clause.

9. What is the role of my executor or trustee?

The role of your executor is to ensure that your wishes in your will are fulfilled. This will involve your executor:-

  • Locating your will
  • Applying to court for a grant of probate
  • Calling in your assets
  • Paying off your liabilities
  • Distributing your assests according to your will
  • Preparing statements of account

10.Who can I appoint as my executor or trustee?

You can appoint any adult (18 years or older) to act as your executor and trustee. You can appoint between 1 to 4 executors jointly to administer your estate. You may also name people to step into the shoes of your appointed executor(s) in the event of any of them predecease you or renounce their executorship. Alternatively, you can appoint a trust company to act as your executor and trustee. The decision on whether to appoint a friend, relative or a trust company will depend on the size and nature of your estate as well as the complexity of your will and testament