Opinion: Writing of wills critical component of preparation for death

As I indicated at the beginning of this year, I intend, occasionally, to discuss the issue of preparing for death; a matter I believe is critical in the management of our private affairs but which, due to its patent non-urgency, is always put off until too late.

In the last two columns on this issue, I discussed matters related to preparing for old age and introduced the discussion on preparation for death. Today I discuss a key component of preparation for death; the writing of wills.

In my career as a lawyer spanning many years, I have been amazed at how most people are queasy about preparing wills even when their estates are expansive and affairs complicated.

When they pass away intestate, the technical term for dying without a will, their succession process is subjected to the strictures of the law even as they leave all manner of contestations for their families. When one dies intestate, matters relating to their estate are handled in accordance with the set provisions of the Succession Act.

That Act has extensive provisions for the management of such persons’ estates including listing the people entitled to inherit the deceased in order of priority and extent of their respective interests.

It naturally excludes many who the deceased would, if they had a choice, have desired to inherit them. It also includes persons one would not have wanted anywhere near their estate!

For instance, many people support causes and charities and they also support persons not directly related to them. Such causes and persons are not anticipated by the Succession Act and are therefore not entitled to a share of the Estate in an intestate situation.

In other provisions, the Act limits a spouses’ interest in their deceased’s spouse’s property to a life interest, that is, they can only use and occupy the property as long as they live. The law gives the substantive interest in property to one’s children. I have watched mothers harassed by their own children courtesy of these provisions.

Where one writes a will however, they can opt out of these strictures. One is allowed to make provision for causes they believe in, and one can gift a portion of their estate to a non-relative.

One can also leave property absolutely to their spouse independent of the children. For expansive estates, one can structure their will in such a way that the estate is not wasted, by placing some assets under trust protection and limiting the tax and other liabilities that may arise from management of the estate in intestate situations.

The process of writing a will is simple and unless one has a complex and expansive estate may not even require a lawyer. There are however certain basic components of a will without which it would be declared invalid. The will needs to state who its executor will be.

This is the person who will ensure its intentions are carried out. Where one has children below 18 it is necessary to list at least two executors. The will must then set out the person’s assets and how one desires for them to be divided upon one’s death. The will must then be dated and signed in the presence of two witnesses who must sign the will.

It is important in one’s will to ensure they have included all people who were dependants of the deceased during their life and had legitimate expectations that they would inherit a portion of the estate.

Failure to include such is what leads to such dependants successfully challenging the will in court. Once it is signed, it is important to have the will kept in safe custody by a trusted person. It is also important that one informs some of their dependants of the whereabouts of the document so that it can be produced at the appropriate time.

With these simple steps one can remove the anguish that accompanies intestacy. I believe that is the ultimate act of irresponsibility to leave such issues unattended. Over to you.