WHERE THERE'S A WILL .....

Benjamin Franklin famously said, "In this world nothing can be said to be certain, except death and taxes." Though these things are certain, people tend to avoid thinking about death, and that means they put off making a will. However, dying “intestate” - which means you have not made a will - can inadvertently set off a chain of events that can be both troublesome and distressing, particularly for your loved ones.

What is a will?

A will is a legal instruction on how you wish to dispose of your property on your death. It must be in writing and should nominate an executor – a trusted person (or persons) whom you wish to carry out your instructions and dispose of your possessions. It must be signed by you in front of two witnesses.

Why should I make one?

A valid will ensures that your assets go to those persons who you wish to receive them after your death. This saves time, trouble, expense and delay for your beneficiaries. A will can also contain directions on financial arrangements for elderly dependents, or your children’s education, and can stipulate guardianship, to guard against family arguments. If you do not have a will, your assets will be distributed in accordance with the provisions under the intestacy law of the relevant jurisdiction. This may or may not be according to the way you would have wished them to be distributed.

When should I do this?

Anyone of sound mind who is over the age of 18 can make a will. However, it is particularly important once you have a family or other dependants.

Can I do it myself?

There is nothing to stop you from making your own will using templates downloaded from the internet or by writing your own instructions. However, this may not be in your best interests. If your homemade will is unclear, does not cover all your assets or is not properly drawn up or witnessed, it may not be effective. In the worst case scenario, administration of your estate could end up in court and take years to resolve, causing distress and perhaps hardship to your family.

By asking a solicitor to draw up your will, you can be sure that your wishes will be properly reflected. You will also receive advice on any potential legal or practical problems related to your proposed distribution, before it is too late.

What would a solicitor need from me?

When you meet your solicitor you should be able to provide details of your executor(s). You should also be able to outline any foreign assets you may have, whether or not you are a resident of a foreign country, and if you are considering marriage or divorce.

Where relevant, you should also provide such things as:

• The name and details of the executors
• The name and details of the guardian you have chosen for your children and your instructions for their upbringing
• Information about any specific gifts you wish to bequeath and details of the beneficiaries, including whether or not the person(s) receiving the amount or item will receive it free from tax.
• The details of the person(s) entitled to share the residuary estate, which is the amount left behind after any specific gifts have been bequeathed and any debts and expenses have been paid.
• The division of the residuary estate between these beneficiaries; and when they will receive their share.

Where should I keep it?

Your will should be kept in a safe place and care should be taken not to leave any marks on it. Your solicitor will normally agree to hold your will, usually at no charge. You should also tell your executor where it is kept.

What else should I know?

It is always a good idea to ask the people who you wish to appoint as executors or guardians if they agree to take up the position. If they do not wish to do so, you can make alternative arrangements. However, it is not advisable to provide a copy of your will to a beneficiary or executor since this could cause unnecessary confusion if you change your will at a later date.

Just because you have made a will doesn’t mean you can’t change it. Ideally you should review your will every few years; more frequently if your circumstances change. For example you should consider updating it if a child or grandchild has been born; if you have sold or bought property or other significant assets; or if your relationship with a beneficiary has changed. You should definitely make a new will when you marry, divorce, or re-marry.  Talk to your solicitor to make sure your will is changed legally, and after drawing it up, destroy the old one.

The contents of this article are for general information only and should not be considered as legal advice.  For further information, please contact:

Mr. Vanky Mak, Partner, Hampton, Winter and Glynn
vankymak@hwg-law.com (852-2847 2338)