Where there’s a Will…

One local attorney-at-law believes persons are not generally aware of the importance of wills. However, the persons who tend to be aware of the importance usually come from “the upper middle and upper class” of society (as it correlates to assets that are acquired in the person’s lifetime and how they intend to leave it upon their death).

Jean-Louis Kelly at Caribbean Commercial Law Chambers told Catholic News wills must conform with certain statutory requirements as prescribed by the Wills and Probate Act. For instance, a will must be executed in front of two witnesses (both being over the age of majority) and all persons must countersign in each other’s presence.

Additionally, if a person named in the will or their spouse is a witness then the will is void and will be “set aside”.

So, what must a will include? According to Kelly, a will must simply include the wishes of the testator/testatrix (the person making the will); the person who the testator/testatrix wishes to carry out his/her wishes, the executor/executrix; and must also include the beneficiaries of the respective property that is being left.

“As a rule of thumb, details ought to be included in a will such as a detailed description of the willed item/property and the name and address of the persons benefitting etc. Finally, an important clause that should be included in any will should be a residuary clause which covers any property that is not mentioned in the will and of course, the person/persons to benefit from such residue property.”

Important to note, there can be codicils—a document that must be read together with the original will—to a will.

Kelly mentioned some common disputes related to wills include: (1) the authenticity of the will (2) whether the person making the will had the requisite mentality to so do (a person must be of sound mind to make a will) and (3) persons who are dependent on the testator/testatrix claiming that there was insufficient provisions left for them in the will.

Some of the possible remedies to this would respectively be: (1) to have an attorney prepare and take execution of the will as this will have the benefit of being easily verifiable if the will were to become contentious.

Further, Kelly added, this will remove the possibility of undue influence by family members and/or close friends; (2) that a longstanding family doctor or a psychiatrist can provide a medical report which is contemporaneous with the execution of the will especially in the event of an older person making such will; and (3) The Succession Act was partially brought into law to allow a dependent (for example a housewife) who did not receive any or any adequate provisions under the will to apply to the Court to vary or set aside such will in the Court’s discretion.

Additionally, once a will is prepared, a person can attend the Probate Registry and request that his/her will be lodged in the depository of wills for living persons.

Kelly explained that “being of sound mind” simply means that a person is in full control of their mental faculties and can make a sane decision in executing their will. “Where a person’s mental faculties can easily be questioned, or such person is mentally insane then such will ought to be set aside as void by the Court.”

He stressed that a person’s last will is valid until it is probated, or an application is made by a beneficiary for letters of administration with the will attached. For instance, Kelly shared, where the executor/executrix dies or refuses to apply. Where any application for Probate is made more than three years after the testator/testatrix’s death, then the person applying must give the reasons for the delay in applying for the Grant.

“A will does not expire per se,” he added.

If someone is unable to sign a will, can that person still make a will?

“The simple answer is yes,” Kelly said. He noted that such instances can include a person who is not physically able to sign (for instance, no hands) or is feeble with age or is blind. Such person can still make a will by having one of the witnesses read over the will and the testator acknowledging the contents as accurate in the other witness’ presence. The witness can then sign on the testator’s behalf at his/her direction or the testator/testatrix can place their thumbprint.

“In any such case, special wording will be required on the execution clause to explain the relevant issue.”

Costs associated with the preparation and execution of wills would depend on what is required in the will and therefore an average cost is not practical, Kelly said.

The costs are based upon the factors espoused under the Legal Profession Act including time spent, complexity of the will, novelty of the matters included etc. However, Kelly said, a rough estimate to prepare a simple will can range anywhere from approximately TT$700 upward.

CHECKLIST

The following outline will help you gather the necessary information to properly prepare a will:

1. Full name and address of testatrix/testator (person making a will)
2. Date of birth and marital status
3. Name of spouse, if married
4. Names of living relatives to be named in the will. Give current address for each person named as a beneficiary
5. Provide names and addresses of others to be included in the will
6. Last specific bequests to be made to each of those persons listed above. Describe the gift, the amount of money or percentage of the estate to each recipient
7. If all your estate is not specifically designated in the above manner, then a residual beneficiary should be decided upon. Frequently, the largest portion of one’s estate will be distributed under this section of the will
8. If minor children are living at the time of making the will you should name a guardian for their care, if both persons pass on at the same time
9. Appoint your executrix/ executor. Husband and wife often name each other. It would be prudent to have an alternate named
10. Property that you wish to be applied to repay debts can be set off against any debts that you owe

STEPS TO EXECUTE THE WILL

The named executor and/or the next of kin can take steps to execute a will. Proof of relationship to the deceased in either case is important.

1. Assemble all available documents

• The original death certificate…the registrar would have issued three at the time of registration
• Your copy of the original will
• An affidavit of the executor named in the will
• Your personal ID card
• An affidavit of due execution from at least one of the witnesses to the signing of the will.
• A list of assets of the deceased
• Copies of deeds of ownership to property, insurance certificates, bank statements
• An estimated value of the deceased’s estate

2. Go to an attorney of your choice
3. Attorney would launch a probate. This would determine if yours is the only search in progress for said estate and if your copy of the will is the last one filed at the registry by the deceased. (This process may take three months to one year.)
4. Your application would then be advertised in the local newspapers and the Trinidad and Tobago Gazette.
5. If ‘all is well’, The grant of Probate will be issued in the name of the executor and sealed by the court
6. All outstanding debts and expenses (legal fees) of the deceased must be paid out of the estate before the disbursement of assets as stated in the will