Essentials of a will – Part 2

A will is a truly versatile document. It can do so many things. Not only does it provide for the distribution of a testator’s gifts, but it contains information about what to do with the remains of the testators. It also provides for the appointment of trustee to manage the affairs of the testator with regard to minors and patients.{{more}}

The body of the will speaks mostly to the gifts of the testator and the words “bequest” or “devise” may be used in relation to the gifts. After these are allocated, a clause would be made for the residuary estate. This would cater for the gifts that failed for whatever reason, such as the would-be recipient died before the testator, or a gift that failed because it is contrary to the law or incapable of taking effect.

The signature

I consider the last part of the will to be the most important part of the will because this makes the will valid. If this is not properly done, the will might not be valid. Although the will is instructive as to the shares, the testator must sign the will after the will is written. It must appear that the testator intended by his signature to give effect to his will. If he cannot sign in his usual manner, he must make his mark and when he does that, he must do so in the presence of two or more witnesses, who must sign after the testator has signed. A witness’s signature must not be on a different sheet of paper, otherwise this would have to be explained in the affidavit of due execution. Another person can sign the will in the presence and by the direction of the testator.

Witnesses

The testator cannot improvise by using one witness. These two witnesses must make affidavits when the will is probated to indicate due execution, that is, they had seen the testator sign. Each witness could sign or attest or acknowledge his signature. The witness need not sign in the presence of the other, but in the presence of the testator. The testator could acknowledge his signature to the second witness. The witness must be competent to sign; in other words a blind man cannot be a competent witness.

Validity

Many wills are contested in court on the basis of validity and this might be challenged on the basis that the testator did not have the testamentary capacity, what is known under the common law as “animus testandi”. One would notice that the will is usually introduced with a statement of the testator being of sound mind and of full age. This is a declaration that the testator has the capacity to make the will. These could also be empty words if the testator was under some compulsion. The testator must possess the mental capacity. He must know and approve the contents of the will and the will should be a product of a free and capable testator who has “exercised his genuine free choice in making of his will and more particularly that he did not make it as a result of the undue influence or fraud of another.” (Non-contentious Probate Practice in the English Speaking Caribbean Nunez- Tesheira, p.14)

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com