This is a question which is frequently asked by our clients. Why should I make a Will?
Firstly, it is important to outline exactly what is a Will. A Will is the word used to describe the document in which a person called ‘the testator’ or ‘testatrix’ according to gender, set out their wishes in relation to certain matters which will take effect on death. A person can dispose of all property which they are beneficially entitled to at the date of their death. It includes both real and personal property. It does not however include joint property which is held as joint tenants and will usually pass by survivorship.
It is worth to know that the Will will not take effect until the death of the testator. This means that the person making the Will can deal with the property which he has purported to dispose of by their Will and may dispose of it in their lifetime. I think that there is a common misconception from our clients that if they leave property to a person in their Will that they cannot dispose of in their lifetime. The testator is perfectly entitled to dispose of their property up until their date of death. It is also important to note that a Will can be revoked at any time by the testator up to the date of death.
One of the main advantages of making a Will is that it allows the client, by way of a clear legal document, to decide how they would like their property to pass on their date of death. Should a person die without making a Will their possession and property will pass as per the laws of intestacy. The Succession Act 1965 will then decide to whom the deceased assets will pass. The absence of a Will is the equivalent to losing control over the distribution of assets on This can often be the opposite to what the deceased would have wished for and can also result in the most unsuitable person assuming the role of executor.
A Will will also allow for the client to provide for any special needs of a family member. This is also especially important if you have a child under the age of 18 and you will need to consider setting up a trust and appointing guardians and trustees. These are people who will look after your children’s assets until they come of age. A trustee manages the assets in the trust until the date specified in the Will has been reached. The property will then be handed over to the named beneficiary.
Guardians are people who will look after your children day to day and will make decisions about their health, education, religion etc. It is important to note that where a testator dies leaving the other parent surviving such surviving parent is the legal guardian of the child in the majority of cases.
It is also an opportunity to ensure the minimum amount of tax will be paid by the beneficiaries unlike in a intestate situation where there is no discretion.
All adults of sound mind can execute a Will and we strongly advise all clients to do so. Making a Will is not something that should be done only on the deathbed or by elderly people. It is something that should be thought about in depth and planned for. It should be considered by all age groups, young and old, and especially couples with young children.
Clients will often believe that if they do not have significant wealth that a Will is less necessary. This is however, not the case and a Will is relevant to any person who has responsibilities as well as assets. We would not only recommend clients to make Wills, we would also recommend clients to continually review their Wills as their life changes and their circumstances changes. The importance of reviewing Wills is also important in light of the ever-changing tax laws each year which may affect how you wish to leave a property on your death.
Another important factor on making a Will is that you can choose who is to handle your affairs on your death. This person is known as an executor or if the appointee is a female an executrix, we will always recommend our clients to appoint at least two executors.
Making a Will also provide you with peace of mind knowing that you are not leaving problems behind for your loved ones and your loved ones know that they are carrying out your wishes as per the terms of your will.