A Will: how should I make one?

If you want to leave your estate, being your assets which you’ve struggled for years to acquire, to those closest to you, then it’s advisable to make a will. Otherwise your estate will be administered in accordance with the statutory order set out in the Probate and Administration Act. That order may not be what you want. Consequently making a will is desirable and advisable.

Having decided to make a will, the issue then is how to make one? It is important to have a will properly prepared and this generally means going to a solicitor. Doing it yourself can be fraught with risk. A will is not like most other legal documents, where a person trying to interpret a part of the document can go back to the person who prepared or signed it and say, ‘What did you mean by this?’ This is for the simple reason that the testator (being the person who made the will) is no longer around at the time the will is needed to be relied on.

While the requirements for a valid will are set out in legislation, it still does not guarantee that the wording of the will is clear and understandable. There is no prescribed or set form for wills. Having said that, a will does need to make sense. For example, you cannot give something to someone if you simply do not have that thing: the thing may have been yours but no longer is (for one reason or another), or alternatively, the thing is incorrectly described.

Furthermore if, for example, there is no way of dealing with what is left over in the estate after specific gifts are made, that is, the balance or ‘residue’ of the estate, there may end up being an intestacy with respect to a part of the estate. That could conceivably result in the State getting it, which is usually not what you would want.

Even if you believe that a reasonable degree of certainty or clarity has been used to identify gifts, uncertainty can arise if expressions such as giving ‘my principal place of residence at the time of my death’ are used. In this case problems could arise if the testator did not own his or her principal residence at the time of death but rather, occupied a retirement village unit under ‘loan & licence agreement’ (which does not give ownership).

Also, the form of ownership of real estate needs to be properly considered. If you own some real estate in co-ownership with another person in joint tenancy, then the interest in the property passes to the surviving joint tenant regardless of what the will says.

In another scenario if you get married after making a will, then generally speaking the will ceases to have effect. Conversely if you become divorced after a will is made, then a gift to your former spouse is revoked but other parts remain in place.  

So, you need to ensure the will is valid, makes sense, and up-to-date.