The  importance  of  writing  your  Will & Testament

 

A Will & Testament is a legal declaration by which a person, the testator, names one or more persons to manage his or her estate and provides for the distribution of his property to them or others at death. The document can be titled as a Will or as a Testament or it can be called Will &Testament.

In the strictest sense, a Will has historically been limited to real property (such as houses and/or land) while Testament applies only to dispositions of personal property such as a bank account, a car and so forth (thus giving rise to the popular title of the document as Last Will and Testament), though this distinction is seldom observed today when in fact it should be. A Will may also create a testamentary trust that is effective only after the death of the testator.

I am amazed at how many adults don’t bother to write their Will & Testament. There are generally three reasons why they don’t do this. (1) They didn’t think of it. 2. They think they have nothing to leave behind after they are deceased. 3.  They don’t want to pay a lawyer to do it for them.

They should think of it. Everyone has something to leave behind them unless they are a homeless beggar. They don’t have to hire a lawyer to prepare the document as there are many self-help Wills & Testaments on the market so they can write their own documents.

Any person over the age of majority and of sound mind (having appropriate mental capacity) can draft his own will with or without the aid of a lawyer. Estimates of the percent of Americans who write their Wills & Testaments before they die range from 30 percent to 50 percent. I think these figure probably apply everywhere. Additional requirements may vary, depending on the jurisdiction, but generally include the following requirements:        

The testator must clearly identify himself as the maker of the Will, and that a Will is being made; this is commonly called "publication" of the Will, and is typically satisfied by the words Last Will and Testament on the face of the document.

The testator should declare that he revokes all previous Wills and Codicils. A Codicil is an addition to the Will after it was signed and dated. Otherwise, a subsequent Will revokes earlier Wills and Codicils only to the extent to which they are inconsistent. However, if a subsequent Will is completely inconsistent with an earlier one, the earlier Will is considered completely revoked by implication alone.

The testator may demonstrate that he has the capacity to dispose of his property (sound mind), and does so freely and willingly. Years ago, when I was practicing law, I was asked to prepare a Will & Testament for a friend but when I interviewed him when he was in the hospital, he was not cognizant as to what was going on all around him. Thusly, I told him that I couldn’t prepare the document as it would later be ruled inadmissible in a court as being invalid.

The testator must sign and date the Will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries). There may be extra witnesses; these are called ‘supernumerary’ witnesses, if there is a question as to an interested-party conflict. Some jurisdictions have long abolished any requirement for witnesses. In some of the states in the  United States, and also in other countries, the law requires  both attestation by two witnesses as well as notarization by a notary public. Holographic or handwritten Wills generally require no witnesses to be valid. In one case, a farmer’s tractor tipped over trapping him under it. He knew he was dying so he scratched a message on the side of the tractor that was dirty. The message was; “Everything to my wife.” Then he signed his name. The court considered it as a valid Will.”

If witnesses are designated to receive property under the Will; this has the effect, in many jurisdictions, of either (i) disallowing them to receive under the will, or (ii) invalidating their status as a witness. In a growing number of states in the United States, however, an interested party is only an improper witness as to the clauses that benefit him or her.

The testator's signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator's intentions.

One or more beneficiaries (devisees,—persons who land is given to in a Will and legatees—persons who personal, effects are given to in a Will) must generally be clearly stated in the text, but some jurisdictions allow a valid Will that merely revokes a previous will, revokes a disposition in a previous Will, or names an Executor.

Incidentally, an Executor refers to a male person and an Executrix refers to female person

There is no legal requirement that a Will must be drawn up by a lawyer, although there are pitfalls into which home-made Wills can fall. They include persons who make their Wills that do not properly explain themselves, or the court has to correct any technical deficiencies or errors in expression, when it comes into effect on that person's death.

You must be very explicit when you are leaving something for each person listed in your Will who will be recipients of part of your estate. Here is an example of what could go wrong if you are not explicit.

‘I leave the bulk of my estate to my son.’

What does he mean when he says the ‘bulk of my estate’? How would someone define the word ‘bulk’? Did he mean that the person who is being given the bulk of his estate gets to choose which part of the estate he can get  before the other recipients get to choose what part of his estate they want?

For example, the bulk of his estate could be construed to mean the land which incidentally is mostly swamp land whereas the rest of the estate is the million dollars in his bank account. Who is to get what in a situation like that?

Further, there could be a real problem if he has another son whose mother is not his wife. There would therefore be two sons claiming that he had them in mind and not the other son. He should spell out the name and also state the date of birth of the son who is the recipient so that there will be no confusion as to which son he is leaving the money or whatever to.

Further, you cannot give conditions that must be followed by the recipients or they don’t get a cent.

For example, you can’t put in the Will;

‘I leave my only son. Billy Joe my estate providing he only marries a woman and not a man.”  or;  “I leave my only daughter, Mary my estate providing that she doesn’t marry a Jew.”

The court would state that such statements in a Will are unacceptable and therefore null and void.

You can however cut a member of your family out of your Will if in doing so it is not against the law or against common decency. For example, if your son is on death row, it would hardly make sense to put him in the Will or if he is dying from cancer and is expected to expire in a few weeks. If he survives or if you son is found innocent, you can add them in your Codicil.

I am now presenting to you a typical Last Will and Testament that you can use.

LAST WILL AND TESTAMENT OF ______________________________

1. I HEREBY REVOKE all former Wills and other Testamentary Dispositions by me at any time heretofore made and DECLARE this only to be and contain my Last Will and Testament.

2. I NOMINATE, CONSTITUTE, AND APPOINT my wife (her Name here) to be the sole Executor and Trustee of this my Will and I DIRECT MY SAID Executor and Trustee to pay all my just debts, funeral and testamentary expenses as soon as conveniently may be after my demise.

3. I GIVE, DEVISE, AND BEQUEATH all residue, both real and personal, whatsoever and wheresoever, of which I am seized or possessed of or entitled to, and over which I have any power of appointment, unto my said wife (her Name here) absolutely.

4. PROVIDED HOWEVER, that if my wife (her Name here) does not survive me for a period of Thirty (30) days, then I DECLARE THAT Paragraphs 2 and 3 herein shall not take effect, and in lieu thereof, the following provisions shall take effect:

a) I NOMINATE, CONSTITUTE, AND APPOINT (Name of First Choice here) as my Executor and Trustee of this my Last Will and Testament, and if said (First Choice here) is unable or unwilling to act as Executor, I NOMINATE, CONSTITUTE, AND APPOINT (Name of Second Choice here) to be the Executor and Trustee of this my Last Will and Testament, and I hereinafter refer to the said Executrix as my Trustee.

b) I DIRECT my Trustee to pay all my just debts; funeral and testamentary expenses as soon as conveniently may be after my demise.

c) I GIVE, DEVISE, AND BEQUEATH all of the remainder of my estate, both real and personal, whatsoever and wheresoever, of which I am seized or possessed or entitled to, and over which I have any power of appointment, unto my Trustee upon the following trusts, namely:

i) To use his or her discretion in the realization of my estate, with power to my Trustee to sell, call in, and convert into money any part of my estate not consisting of money at such time or times, in such manner and upon such terms, and either for cash or credit or for part cash and part credit as my said Trustee may in his or her uncontrolled discretion decide upon, or to postpone such conversion of my estate or any part or parts thereof for such length of time as he or she may think best, and I HEREBY DECLARE that my Trustee may retain any portion of my estate in the form in which it maybe at my death (notwithstanding that it may not be in the form of an investment in which Trustees are authorized to invest trust funds, and whether or not there is a liability attached to any such portion of my estate) for such length of time as my said Trustee may in his or her discretion deem advisable and my Trustee shall not be held responsible for any loss that may happen to my Estate by result of so doing.

ii) To hold the residue of my estate as a special fund for the maintenance, education, and benefit of my children until the youngest shall attain the age of nineteen (19) years. I HEREBY DECLARE that it shall be lawful for my Trustee at any time in his or her absolute discretion to raise the sum or sums out of the income or capital of my residuary estate and apply them for the advancement and benefit of my child or children during his, her, or their minority or majority in such manner as he or she shall think fit, and my Trustee shall be entitled to spend more on one child than on another, and no sum so spent shall be brought to account by any child upon the division or balance of such funds or of my residuary estate. The receipt by any child or guardian of any payments authorized to be made herein shall be a sufficient discharge to my Trustee and shall exonerate my Trustee from all responsibility with respect to the application thereof.

iii) Upon the youngest surviving child attaining the age of nineteen (19) years (hereinafter called the distribution date) to divide the remainder of my estate into as many shares as I have children, and to transfer one share to each of my children, absolutely.

iv) If any child of mine does not survive the distribution date but dies leaving a child or children living at the distribution date, then the share of the residue which such child of mine would have taken had such child survived distribution date and obtained a vested interest in the residue of my estate shall be divided equally among such child or children as aforesaid of such child of mine, and if more than one, in equal shares. Provided further that if any child of mine shall die before the distribution date leaving no child or children living at the distribution date, then the share of residue which such child of mine would have taken had he or she survived distribution date is to be distributed among my children who survive distribution date.

5. I AUTHORIZE my Trustee to make payments for any person under the age of nineteen (19) years to a parent or guardian of such person, whose receipt shall be sufficient discharge to my said Trustee.

6. I NOMINATE, CONSTITUTE, AND APPOINT First Choice here to be the guardian of my children. If the said (First Choice here) is unable or unwilling to act as guardian, then I NOMINATE, CONSTITUTE AND APPOINT (Second Choice) here to be the guardian of my children.

IN TESTIMONY WHEREOF, I HAVE TO THIS DAY, MY Last Will and Testament, written upon this and two (or more)  preceding pages of paper, subscribed my name, this (Month, Day, Year)

SIGNED, PUBLISHED and DECLARED

By the said Testator:

Your Name here as and for his Last Will and Testament,

in the presence of us both present at the

same time who at his request and in his

presence and in the presence of each other

have hereunto subscribed our names as

witnesses:

 

NAME First WitnessName _______________________________

ADDRESS: ____________________

City and province or state_______________________

OCCUPATION; ___________________________

 

NAME: Second Witness Name. __________________________

ADDRESS _______________________________

City, province or state

OCCUPATION: ________________________

 

SIGNATURE OF THE TESTATOR: ______________________________

Remember that the Executor or Executrix is required by law to pay all the verifiable debts of the deceased BUT ONLY FROM THE ESTATE. When the debts are paid, then the money can be distributed to the recipients. If there are outstanding debts and the estate has been distributed, the Executor and/or the Executrix is personally liable for the payment of those debts.  The way to make sure that they are not held liable, they can and should place an ad in the newspaper where the deceased lived stating that he or she is deceased and all creditors should contact the Executor and/or Executrix. The ad must be in the newspaper for three consecutive days. I suggest that you wait a week and after that if no claims are made by then, you can distribute the estate to the recipients.

The executor and/or Executrix is generally permitted to charge a fee for his or her services but you should check with a lawyer or a government official as to what the fee is in your jurisdiction.

You can be specific as to exactly what is being distributed to each of the recipients of your Will and Testament.

I sincerely hope that his article in my blog will assist you in preparing your Last Will and Testament.

         

MESSAGE TO MY READERS:

I am taking a break from writing for a week. My next article will be published in my blog on Friday, September 6th .