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Making a will

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There are certain things that one has to do in one’s life time which may not be pleasurable but which are nonetheless necessary.

I consider the making of a will to be very important if a person owns property and has relatives who will benefit thereof. If one dies without making a will then the court will distribute the property in accordance with the law but this may not be consistent with his/her wishes. {{more}}

Some persons are of the opinion that a will should only be made when one is sick or is at the point of death, but a will can be made when one is vibrant and healthy provided that one is over the age of eighteen and is mentally capable. It gives that person a sense of power and control in deciding who should benefit from his/her

property.

Although a person might be in possession of property belonging to another there must be a legal transfer by the court in order to obtain legal title to it. The property of the deceased is transferred to those who should rightfully benefit. These matters are dealt with by the probate division of the High court. Probate matters are either contentious (disputable) or non-contentious. For non-contentious matters there is no dispute about who should inherit the property of the deceased and these are dealt with by the Registrar of the High Court even though the application is addressed to a judge.

The Registrar decides on grants of probate where there is a will and letters of administration where there is no will. In the former the testator (the person who dies leaving a will) is said to have died testate and in the latter he would have died intestate.

A will only becomes effective after death. Hence the testator can make several wills during his lifetime but only the last will, provided it complies with the law and is properly drafted, will be accepted. Any property given to a person during the testator’s life time is not affected by his will and is regarded as an inter vivos gift.

The latest will revokes (cancels) an earlier will. If the creator of the will is dissatisfied with his present will because of changed circumstances in his life, he could make another will revoking the first will or he could make a codicil which is a supplementary will. A codicil makes adjustments to a will and does not necessarily dispose of the entire estate. It modifies, explains or qualifies the will. When presented for probate the codicil becomes part of the existing will.

A will is very convenient because it does not only identify the persons who will benefit (the beneficiaries) but it also names the executor (male)/executrix (female) or personal representative that is the person chosen by the deceased to distribute his estate and to carry out certain instructions. The executor is in a position of trust and must satisfy the wishes of the testator by carrying out the instructions in the will.

There is a practice whereby the executor or his lawyer keeps the will. After the death of the testator the executor makes an application to probate the will.

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