The Importance Of Making A Proper Will

Sir Lawrence A Joseph

by Dr. Lawrence A. Joseph

During my thirty-five years of practicing as a lawyer in Grenada, I have seen many situations where people have experienced anguish because either their parents or their spouses did not take the time to execute proper wills. A proper will must be made in accordance with the Wills Act and any significant deviation from its provisions may render the will null and void. It is always advisable therefore to seek legal advice when making a will.

     A will is a written document which is made by any adult person (referred to as the testator) which appoints an executor (or executors) who is responsible for administering the estate of the testator after his or her death and outlines how land, buildings, personal belongings such as money, shares and household items which are owned by the testator are to be distributed after the testator’s death. A will takes effect after the death of the testator. A will may be changed by the testator at any time and there is no limit with regards to the number of times that he or she may change a will. It may be changed by either, destroying the old will and making a new one, or by making an addition to the will which is called a codicil.

     A testator can only dispose of property in a will which he or she owns at the time of death. If a lot of land (with or without a building) is owned by the testator as a “Tenant in Common in equal shares” with another person, then the testator is entitled to devise only half share in that property. If the testator owned property as a “Joint Tenant” with another person, then full ownership of that property automatically passes to the other joint tenant on the death of the testator. Therefore no devise on the part of the testator in relation to that property can take effect. The same principle applies to a joint account at a bank. Additionally, if certain property has been mentioned in the will which the testator had sold or given away during his or her lifetime, then the devise in the will in relation to that property cannot take effect.

     Just in case the testator has forgotten to mention certain property in the will or in case he or she becomes the owner of additional property after executing a will, it is always advisable to have a residual clause in the will which outlines how additional properties should be disposed. If this is not done then any additional property may be disposed of in accordance with the Intestates Estates Act which situation may not necessarily coincide with the wishes of the testator.

     When executing a will the testator must do so in the presence of two witnesses who must be present at the same time. The testator’s signature or mark must come at the end of the main body of the will. Unlike the case with an executor, no witness is allowed to be a beneficiary under the will.  Therefore any devise of property made to a witness becomes null and void and the property falls into the residuary estate of the testator. This property may then be claimed by the person or persons entitled to it in accordance with the Intestates Estates Act.

     A testator may devise property to whomsoever he or she chooses. Therefore property may be left to a cousin, a friend or an institution such as a church instead of to a spouse or to a son or daughter. I have seen instances where the Testator left token amounts to spouses, such as one dollar and Five dollars for the spouse to buy five yards of rope. In the latter instance the insinuation is that the spouse should hang his or herself. In such situations of course the spouse is not legally bound to obey the wishes of the testator.

     The consequences of a person not leaving a proper will may well go against his or her wishes and this situation may be rather traumatic to someone on a dying bed. For example, someone may be legally married to another person but they became separated from each other for a lot of years because of an estranged relationship. If one of these persons does not leave a proper will and that person dies, then the living spouse can legally make an application for Letters of Administration to the estate of the deceased spouse and according to the circumstances in hand may well become legally entitled to all the property of the deceased spouse. A divorced spouse is not entitled to apply for Letters of Administration. However, if there are children of the marriage, then, any of those children may apply for same if the situation so warrants and become entitled to the estate of the deceased.

     In order to avoid unnecessary consequences and to enjoy peace of mind therefore, it is always advisable to make a proper will as early as possible. Dependent on circumstances in later years, it could always be changed. A word to the wise is sufficient.

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