Wills

Nature of Will or Codicil An instrument containing the wishes or declaration of a person (called the “testator”) with respect to the matters which he desires to take effect after his death. “Codicil” is generally supplemental to a will. Same formalities apply. It can stand on its own. It is made for the purpose of disposing of property to take effect at death. A will is ambulatory (without fixed effect): that is it can be altered or revoked by the testator at any time during his lifetime and capable of operating on property which becomes that of the testator after the will has been made and if it is irrevocable during the lifetime of the testator, it is not a “will” but some other document.

Formalities Person must be 18 years or over or have been married to be able to make a will. Must be of sound mind at (1) time of giving instructions and (2) at time of execution. Sound mind requires that the testator is able to: (a) understand and recollect the property he has, (b) understand and recollect the claims of those whom by his will he is excluding, and (c) understand that he is giving his property to one or more of the objects of his regard. Certain disorders may affect the testator’s mind or soundness of mind i.e. drugs, age, Dementia etc. Care must be taken when making a will for an elderly person. Deaf or dumb person can make a will once he understands what is written down.

Formalities Cont’d Must be in writing (61 (1) (a)). Must be signed by the testator or by someone in his presence and by his direction (61 (1) (b)). The signature of the testator must be made in the presence of two witnesses, who must acknowledge the testator’s signature and that it was made in his and the other party’s presence (61 (1) (c)). A gift to a witness is void i.e. person who benefits under the will cannot attest the will, otherwise, though the will is still valid, that person nor his spouse cannot take a gift under the will. Exception where there is a secret trust and the beneficiary witness does not know that he is a secret beneficiary under the will. Exceptions to formalities: sailors at sea and soldiers in actual military service.

Other Types of Wills Holograph will – must be written throughout in the proper handwriting of the testator. Need not be signed or witnessed. Mutual Will – two or more persons, usually but not always, husband and wife, agreeing to make their will in the same terms – either in a joint will or two separate wills: “This is the last will and testament of us A. B. and Y. Z. of Glen Acres, St. Peter, Barbados, and we declare this is the mutual will of us both made in pursuance of an agreement between us that this will shall not be revoked by either of us individually during our respective lifetimes.”

Other Types of Wills cont’d Mutual will is revocable by one party during the lifetime of the two testators, with notice to the other of the revocation or alteration. Notice gives the other party the chance to change his will. Revocation may take the form of making a subsequent will dealing with the same property. Once one party has died without revoking the mutual will, the surviving party, cannot after the death of the deceased, revoke the mutual will. The court will enforce the agreement between the two parties with respect to the mutual will. Notice must be given of the revocation during the lifetime of both parties to the mutual will for the revocation to be effective.

Appointment of executors and trustees If none appointed, the will is still valid. The testator should appoint a person who he considers trustworthy, of integrity, willing to serve, conscientious and organized. No limit to the number of executors to be appointed, but generally thought that two, as a maximum, are adequate. One will be sufficient in most cases. The type of estate may dictate the type of executor to be appointed and the number of executors. A minor can be appointed an executor (but not a trustee), but cannot take probate until 18 years.

Appointment of executors and trustees cont’d Same person may be appointed executor and trustee of will. Executor where the person has only to collect the assets, pay debts and distribute the estate to the beneficiaries. Trustee where there is ongoing management of assets, or investments to be made etc. For example, where a property has to be held and managed for a child until the child reaches eighteen, then a trustee is appointed. Both an executor and a trustee have wide statutory powers, which are similar, in relation to the property of the testator, including power to maintain, dispose of, invest, insure the assets etc.

Appointment of executors and trustees cont’d A trustee or executor is not to make a profit from his office, but the will could provide for his or her remuneration, especially where a trust corporation or professional is appointed trustee. Trustee or executor is entitled to be reimbursed his expenses properly incurred in acting on behalf of the testator’s estate from the estate fund.

Property which may be disposed Testator may dispose of real and personal property in his will to which he is beneficially entitled. These include, e.g.: interest in land and leases money and shares in companies business and partnership interest property given to the testator in the will of another moneys from a life insurance policy where there is no named beneficiary

Property which may be disposed all moveable property e.g. jewellery, cars etc property by which he is co-owner as tenant in common Cannot dispose of property that he does not own e.g. a person having a life interest in a property cannot dispose of it.

Types of Gifts (devices and legacies) Personal property bequeathed is referred to as a legacy, and money as a pecuniary legacy. Gift of land is referred to as a device. Gifts may be specific or general. With a specific gift, the gift is identified e.g. I give my 2010 Toyota Corolla, MJ 210 to A. B.; I give one of my motor vehicles which I own at my death to A.B. A will may contain a fully secret trust or a half secret trust. Fully secret trust - the testator leaves property to his executor or trustee, which, upon the face of the will, is left to the trustee absolutely e.g. I give to my trustee my house at Glen Acre, St. Peter. However, the trustee and the testator might have agreed privately that the trustee would sell and give the proceeds to someone else e.g. usually a child born outside of the marriage or to a woman who the wife knew nothing about.

Types of Gifts (devices and legacies) cont’d Half secret trust - the testator gives property to the trustee “upon trust”. Those words show that the trustee is not the absolute beneficiary. Again the testator and the trustee have agreed privately for the property to be given to someone else. Will may give a life interest i.e. I give my house at Glen Acres, St. Peter to A. B. for life and thereafter to Y. Z. absolutely.

Limits to Testator’s Freedom A testator is generally free to dispose of his assets as he may decide, except where he/she has a spouse or a child or children. If testator dies leaving a spouse and a child who is a minor or who is incapable of maintaining himself or herself because of some mental or physical disability, the spouse has a right to one-quarter of the estate (section 93 (1)). If the testator dies leaving a spouse but no child, the spouse is entitled to one-half (section 93 (2)). The spouse’s legal right takes priority. The spouse has the right to make election between any gift made in the will and his or her legal entitlement within six month of probate. The executor must notify the spouse of the right.

Limits to Testator’s Freedom cont’d The spouse who was legally separated, or not cohabiting for five years, or guilty of an offence against the deceased or child of deceased punishable by imprisonment for 2 or more years, is precluded from taking a share as of right. Any disposition made by the testator within 3 years of death with the aim of defeating the spouse’s right or the child’s right, may be set aside by the Court, and the asset will form part of the estate of the deceased. The testator must make proper provision for a minor child or child incapable of maintaining himself or herself by reason of mental or physical disability. The Act does not provide for a specific percentage. Can apply to the Court to make an order for provision for the child.

Revocation of will A subsequent will revokes a former will. Marriage revokes a will, unless the will is stated to have been made in contemplation of marriage. Divorce does not revoke a will per se, but will revoke a gift to the former spouse.

Setting aside a will Lack of testamentary capacity. Invalidity – it does not comply with the formalities required by law. It does not make provision for the spouse or a child. Undue influence exerted on the testator. This could be actual or presumed. Presumed arises where there is a relationship of trust between the parties, such as solicitor and client or priest and parishioner etc.

Lapse of gift Generally, a gift to a donee takes effect only if the donee is alive at the time of the death of the testator. If donee predeceases testator, the gift is said to lapse. A gift to a corporate body (which in most cases will be charitable in nature) which ceases to exist at the death of the testator will lapse. Exceptions to lapse include: (a) where the will provides otherwise and (b) statute provides otherwise, e.g. section 83 of Succession, gift not to lapse where the done is child of the testator, in which case the gift goes to the child of the donee.

Copyright 2015 Alrick Scott. All rights reserved.