Death is uncertain but inevitable. Therefore as much as man plans while alive it is essential to ‘plan’ what happens to one’s property after death. One of the main reasons to plan the distribution of one’s property while alive is to prevent potential family strife. The other reason being, the property can be distributed according to the wishes of the deceased and also as per the needs of the family members.
The only way to ‘plan’ what happens to one’s property after death is by writing a will, in layman’s language a document which sets out the wishes of the deceased as to how his property is to be distributed after death. In the absence of a will, the properties of the deceased will be distributed according to the provisions as contained in the Distribution Act 1958 as an intestate. In respect of Muslims, if at all only 1/3 of the property can be willed away by way of a Wasiat, for example to non – Quranic heirs and the rest 2/3 will be distributed to the Quranic heirs as per the Faraid certificate.
The aim of this article is to focus on the essentials of a valid will in respect of non – Muslims only and as set out in the Wills Act 1959 (hereinafter “WA 1959”). It is expressly stated in s. 2 (2) WA 1959 that the said Act shall not apply “to the wills of person professing the religion of Islam”. Before commencing let us acquaint ourselves with the common terms that one will come across in this article as explained below:-
Testator – the maker of the will.
Executor – a person named in the will who will carry out the wishes of the testator as per the will.
Beneficiary – the ultimate recipient of the testator’s property.
Estate – all the properties left behind by the testator.
Grant of Probate – a legal document authorizing the executor to deal with the affairs of the testator as per the will.
Codicil – an addition that explains, modifies or revokes a will or part of it.
Formal requirements of a valid will
Not everyone can leave a valid will. According to the Wills Act 1959, the testator must be at least 18 years of age at the time of writing the will (s. 4 WA 1959) and be of sound mind.
The other requirement is that the will must be in writing and signed by at least two witnesses who are present at the time the testator himself signed the will and they must sign in the presence of each other (s. 5 of the Wills Act 1959). It is of utmost importance that the two witnesses are not beneficiaries or their spouses under the will as it will make them ineligible to claim under the will (s. 9 WA 1959). There is no such prohibition for an executor to be a beneficiary.
The will need not be stamped for it to be valid.
The contents of the will
Besides the formalities outlined above, it is essential to include a revocation clause revoking all former wills and codicils so as to leave no doubt that the will in question is the one to have effect after death.
The other essential in a will is the appointment of at least one executor or if there are minor beneficiaries then at least two executors, as property bequeathed to the minors must be held in trust until they attain the age of majority. The importance of naming an executor cannot be understated, as it is the executor who must apply for Grant of Probate in the High Court and also to see that all the outstanding debts of the testator are paid off first before distributing the property according to the will.
Unless all the properties of the testator are to be bequeathed to one beneficiary, it is essential that the identity of the property (or the portion of it) as well as the intended beneficiary of the said property (or the portion of it) be clearly identified in the will so as to leave no room for doubt. If doubt arises the will, will be invalid due to ambiguity and of course, it will be too late to get it correct. Generally speaking the contents of the will can be as varied as the testator wants it to be and it need not be only in respect of property distribution as guardian or guardians can also be appointed for infant beneficiaries until they attain the age of 18 years.
Revocation of a will
As the will only takes effect upon the death of the testator it can be revoked at any time by the writing of another will with a revocation clause or by simply destroying it intentionally like burning or tearing it (s. 14 WA 1959). However it must be noted that in some circumstances there will be automatic revocation of the will, namely marriage or remarriage unless the will expressly provide for a ‘contemplation of marriage’ clause (s. 12 WA 1959) or upon conversion to Islam because the distribution of the estate will be according to Islamic law of inheritance.
Generally speaking, even if one has written a will it is prudent to write a new will as circumstances change unless the said circumstances are already provided for.
None of the above is to be taken as professional legal advice and the reader should consult a lawyer or a professional will writer to ensure compliance with all the statutory requirements.