In a fantasy series by Laurell K. Hamilton, necromancers chiefly earn their living by raising the newly deceased so that grieving relatives (and their lawyers) can ask them questions about their wills.
In today’s probate practice, as one deals with missing witnesses, recalcitrant relatives and genuinely puzzled executors, one often wishes there was such a simple solution.
In the interim, there are a few legislative and practical changes which, it is suggested, would simplify certain procedures, and bring more fairness to succession law.
To give a brief explanation of the process: a person who writes a will is called a testator. In the will, the testator should appoint one or more executors who will carry out his instructions, pay the funeral expenses and apply for probate. The testator should file the original will in the Registry of the Supreme Court where it will remain sealed and secure until it is needed. He should leave a copy with his executor and should let his closest relatives know who that executor is. A testator may change his will at any time, and the same procedure should be followed for any subsequent wills. It should be noted that a will becomes void on marriage.
Parents may, through their will, appoint a guardian for their minor child. This is the only method by which a parent can empower grandparents, godparents and other relatives who may be afraid of losing contact with the child. If they accept, these guardians will step into the testator’s shoes and, if necessary, may sue for maintenance and access.
It should be noted that a person is under no obligation to leave property to adult children, and may disinherit them. However, a testator cannot disinherit a spouse – a spouse is entitled to claim 50 per cent of the estate (this share is only 25 per cent if the testator leaves minor children or children with disabilities). A legal spouse loses all succession rights after five years’ separation.
The definition of spouse is found in Section 2 of the Succession Act Cap 249: “A single woman who was living together with a single man as his wife for a period of not less than five years immediately preceding the date of his death.” (The same holds for a man where the woman dies.) A single man/woman includes a widower/widow and a divorced person. A person no longer qualifies as spouse if the relationship ended more than a year before the death.
Issue: In some situations, both parties were not single for the entire five-year period. For example, they may have started their relationship before one person obtained a divorce decree. This is out of line with the Family Law Act which recognises five-year “common law unions” (as they are popularly known) without restriction.
Recommendation: It is recommended that a legislative change be made to the Succession Act so that any man and woman who live together for five years as husband and wife can qualify.
Spouse’s share on intestacy
Where a person dies without a will, he is said to die “intestate” and his estate falls to be divided according to the rules of intestacy outlined in Part VI of the Succession Act. His entire estate will be divided between his spouse and his issue (children or grandchildren). Where there is only one child (minor or adult), the spouse will inherit two-thirds and the child a third. If there is more than one child, the children will equally share two-thirds and the spouse will take a third. If there is no spouse, the children will take all.
Where there is a spouse but no children, the spouse will take two-thirds, but the remaining third will be divided between the deceased’s next of kin. These may be parents, siblings, nephews and nieces, aunts, uncles and cousins. It is also the next of kin who inherit all if there is neither spouse nor issue. Note that no distinction is made between children born within or outside of wedlock, and half-siblings are treated the same as whole siblings.
Where there is no will, the court appoints an “administrator” who carries out the same functions as an executor, calling in all debts and distributing the estate according to the rules of intestacy. A spouse may apply to become the administrator, followed by children, parents and next of kin. A person who applies must obtain written consent from every person who is at the same level or higher in the priority list.
Issue: Where an intestate dies without children or spouse, his parents take his whole estate without the need to share with many other relatives. There seems no reason why a spouse should not be in the same position. There may be hardship, especially in situations where a person, married for decades, must track down umpteen relatives of their deceased spouse to ensure that each person gets their tiny share of a small estate.
Recommendation: It is recommended that legislative change be made to the Succession Act so that a spouse can inherit the entire estate where there are no children.
Witnesses of the will
There must be at least three persons in the room when the testator is signing his will: the testator and two witnesses, and they must all watch each other sign the will. After the testator has died, either of the witnesses must sign an Affidavit of Due Execution (or Attestation) for the will to be admitted to probate. Note that beneficiaries and their spouses must not act as witnesses as they will lose all gifts under the will.
Issue: It is sometimes difficult to track down witnesses, especially where they have only signed with an illegible signature.
Recommendation: Witnesses should print their full names and addresses. It is also recommended that provision be made for Affidavits of Due Execution to be prepared immediately and filed with the will.
Provisions for children
Under our Succession Act, where a testator has not made proper provision for his minor children or those adult children who, because of some mental or physical disability are incapable of maintaining themselves, these children are entitled to claim reasonable maintenance from his estate.
Issue: The statute leaves open the interpretation of “reasonable maintenance” and “proper provision”.
Recommendation: Legislative change is needed to bring this statute into line with the Family Law Act which sets out maintenance guidelines.
Conclusion
In the short term, it is hoped that this article will encourage all persons to write wills. This will prevent fights over your assets or over who should become the administrator of your estate. It is the only way that you can safeguard the interests of your loved ones who may not otherwise qualify as spouse or guardian, and so on. It will even simplify your funeral arrangements as some banks will release burial expenses only at the behest of the immediate family or of named executors who produce a will.
By writing a will, you are leaving more than material items – you are leaving your loved ones the gift of comfort and convenience.