The Expert's Say: Importance of leaving a will |
| A will may simultaneously be both the simplest and most
important document you write in your life. Legally, anyone can write a
will. Still, it is wise to seek professional help to ensure all pertinent
issues have been addressed in the correct manner. This lessens the possibility
of the will being contested in court, and the potential frustrations to
your loved ones subsequently.
In addition to this advice, a professional will clearly lay out and explain the steps involved in writing a will, highlight different clauses that must be included and thus make the process of writing a will methodical and less daunting. With this in mind, how then do you ensure that your will is written properly, and what aspects should you consider when writing your will? The first thing you should do as a testator (person writing the will) is to appoint an executor for the will. Executors, who will later on be responsible for administering and managing your estate on your behalf, can be friends, relatives or appointed organisations like trust corporations. Although only one is required for the actual administration of your estate, it is advisable to appoint an alternative executor in case the first executor is unable to carry out the designated duties. In fact, a total maximum of four executors can be appointed. The choice of an executor requires more than a cursory thought. Estate administration and the execution of the will requires time, wisdom, commitment and responsibility. Executors must also be of high moral character and trustworthy -- especially if your estate is quite large and valuable and if your family's livelihood is dependent on your estate. Once you have chosen your executors, talk to them. Explain why you chose them and the tasks and responsibilities they will need to undertake in the future. Their consent to being your executors is vital to ensure your family is not left in a lurch subsequently. Should you feel that the task of an executor is too burdensome for individuals to bear, or if you cannot find suitable persons to be your executors, you can consider naming a trust corporation as your executor. Next, you will need to consider guardians for any of your children or dependants who may be below the age of 21 years. Under normal circumstances, the surviving spouse assumes and fulfils the guardian's role. These days though, it is not unusual to read about children becoming orphans due to unfortunate and fatal mishaps whereby both parents die simultaneously. Thus, in case the testator and his or her spouse were to die together, or if the spouse predeceases the testator, it is advisable to appoint an alternative guardian. This will assure you that someone whom you have chosen and whom you trust will provide for your children's mental and physical support as well as their health and education. Beneficiaries, naturally, are the focus of any will as they will be the people or organisations who benefit from your will. You may choose to leave your estate to numerous beneficiaries, or you may choose to leave the entire estate to a sole beneficiary. The choice is yours as there are no limitations to beneficiaries. However, if you name a single beneficiary, it is advisable to name alternative beneficiaries in case your intended beneficiary predeceases you. Notwithstanding the freedom to choose your beneficiaries, you should ensure that reasonable and adequate provision has been given for the maintenance of your spouse or any daughter who is unmarried or who by reason of some mental or physical disability is incapable of maintaining herself. You should also ensure sufficient provision for any sons you may have below the age of 21 years or who, by reason of some mental or physical disability, is incapable of maintaining himself. If these are not attended to, the court may vary your will to make the reasonable provisions for these people if an application or appeal is made. These provisions will be dependent on the circumstances and the lifestyle the legal beneficiary is accustomed to. Dependants not recognised by the law as legal beneficiaries, for example, a favourite godchild or nanny will not be able to benefit from your estate if you die without a will. Thus, by specifically naming these people as beneficiaries in your will, you will ensure their continued providence -- even when you are not around. After choosing the beneficiaries, the testator then apportions accordingly his or her assets including property, stocks and jewellery to the individual persons or organisations. A list detailing all your assets should be drawn up first to enable ease and method in deciding who gets what. This orderly manner will ensure you do not overlook any of your assets or any of your intended beneficiaries. In fact, most professional will-writers would be able to help you do this. When writing your will, you should try to make it as exhaustive as possible, that is to ensure that any previous wills are revoked, any future children are provided for and any future assets or wealth accumulated are disposed of and distributed in proportions similar to the rest of the will. You can do this via an opening clause which states your name and personal details (for example, identity card number, date of birth and home address) as well as the date it is written. The date of the will is important because generally, the latest will take precedence over all earlier written wills. The revocation clause follows the opening clause. This clause revokes all previous wills and helps safeguard against fraud or forgery. Following this is the distribution of assets which states the name and relationship of the beneficiary -- whether it be an individual or an institution. Finally, a will also includes a residuary clause which will enable the distribution of any assets that were not disposed of specifically, for example, assets accumulated after the writing of your will. This clause reduces the need to constantly change your will to suit your circumstances so that you need only rewrite it if your personal situation changes dramatically. To validate your will, certain formalities must be observed. Testators must be at least 18 years of age and of sound mind when making their will. It must be in writing -- whether handwritten or typed -- and it must bear the testator's signature or thumbprint. To validate the will, two witnesses must be present at the time the testator signs or affixes his or her mark. These witnesses attest that the testator was of sound mind when writing the will and did so of his or her free will. However, neither of these witnesses nor their spouses can be beneficiaries of the will otherwise the gift that the witness is supposed to inherit will be invalidated. This rule seeks to protect testators from being influenced by their beneficiaries. A will is an important document. It protects and provides for your loved ones and dependants. It can be written by anyone but as discussed here there are various complexities. It is thus advisable that you seek the help of professional will-writers when drawing up your will to ensure that it is made in compliance with legal requirements and professionally drafted. This will enable it to stand in a court of law and make its provisions binding in case it is contested.
Saw Leong Aun is the chief executive officer of Rockwills Corporation Sdn Bhd, the franchise holder for Trust Wills professional will-writing service. Saw, who has 15 years of experience in the financial field, has also written a book entitled All You Need to Know About Wills. |
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