Will and Probate


A. FINAL WILL AND TESTAMENT

 

A Will sets out how a person's assets are to be distributed after his or her death. Any person over the age of 18 may make a Will. 

 

  1. What are the Advantages of Creating a Will?

If a person makes a Will, he/she can:-

  1. arrange how his/her assets will be shared amongst relatives (under the law of intestate there may be situations where the outcome may not be desired by the testator - e.g. the estate to be shared between the spouse and the siblings);
  2. leave assets to beneficiaries who are not related to him/her, e.g. de-facto spouse, friends and charities;
  3. appoint executor(s) (number of executors not to exceed FOUR) to manage and distribute the assets;
  4. executor(s) will be able to get hold of the assets almost immediately instead of having to wait for the letter of administration from the court, which may take a few months and maybe problematic for your loved one if they need money for the living expenses / funeral in the near future;
  5. save on stamp duties from the future transfer of properties should the law of intestate result in splitting real properties amongst many different owners. 
  1. Formalities of Making a Will

One can make a Will through the forms provided, or seek help from a solicitor. The advantages of going to a solicitor are:

  1. solicitors generally have more experienced in drafting Wills;
  2. should it be necessary to prove (after death) intention and mental capacity at the time the Will is prepared and signed, the solicitor can attest to it; and
  3. solicitor can witness, keep and register the Will, and can produce the Will upon death.

 The following formalities should be followed for the Will:

  1. all of the intentions of the testator should be produced in writing;
  2. the Will is to be signed by (i) the testator or (ii) a person in the presence of the testator under his / her direction (not recommended unless there are special circumstances, such as physically unable to sign it);
  3. testator's signature and those of the witnesses should preferably be placed at the end of the Will;
  4. the Will should be dated before it is signed;
  5. testator signature should be witnessed by two persons (aged 18 or above – some jurisdictions may have different number or age requirements, please check with a local solicitor) present at the same time who should then sign the Will at the same time; 
  6. the witness and his/her spouse should not be a beneficiary under the Will. If a beneficiary or his/her spouse witnesses the Will, the gift to the beneficiary under the Will is forfeited;
  7. an executor can however also be a beneficiary under the Will.

3. Execution of a Will

The essential requirements of a Power of Attorney are as follows:

  • A Will should be executed by deed with all intentions in writing.
  • The instrument creating a Will must be signed and sealed by the principal in the presence of two witnesses. 
  • The Will should be dated before it is signed. 
  • The witness and his/her spouse should not be a beneficiary under the Will. If a beneficiary or his/her spouse witnesses the Will, the gift to that beneficiary under the Will is generally void.

 

B. LIVING WILL

 

A Living Will is different to a Last Will and Testament.  It is an essential document that is very often overlooked. It is a document that lets people state their wishes for end-of-life medical care, or how to manage their financial affairs, in case they become incapacitated / lack of mental capacity / unable to communicate their decisions. This will also benefit their loved ones, who often have to make decisions on their behalf when patients get sicker or are not able to express themselves, by easing the burden of decision making because they know more about what their patient wants. The Living Will generally has no power after death. A living will can be revoked at any time. The document can take effect as soon as it’s signed, or only when it’s determined that the person can no longer communicate his or her wishes about treatment.

There are various different types of Living Will one can enter into:

  1. Advance Directives

Advance directives set out how the patients want to be treated if they become seriously ill and unable to communicate their wishes. Depending on the jurisdiction, there may or may not be legislation to give such requests legal standing. Demands could include, for example, to not be given cardiopulmonary resuscitation if such a situation arises.

Advance Directives may or may not be a legally binding document depending on the jurisdiction, but the doctors will generally follow the stated wishes or assign the case to another doctor if the wishes go against the doctor's professional beliefs.

 

To be valid, advance directives must meet the local requirements regarding notarization or witnesses. For example, a witness must not be a person who is a beneficiary under –

  1. the will of the maker of the Living Will; or
  2. any policy of insurance held by the maker of the Living Will; or
  3. any other instrument made by or on behalf of the maker of the Living Will.

Or one of the witnesses must be a medical practitioner etc. Please consult a local lawyer as each jurisdiction may be different.

 

2. Enduring / Continuing / Durable Power of Attorney

 

Some individuals may not be ready to make the decisions but wish someone else to make the decisions on their behalf.  Please refer to the Power of Attorney Category for more information.

 

3. Statement / Letter of Wishes

 

Where people can't envisage the dying phase, they may have what they call a statement of wishes. These are broad statements of wishes in terms of what they want to have in the later part of life. One can communicate their goals of care, such as enjoy an improved quality of life, more and earlier hospice care, or care to enable them to remain in their homes, etc. 

 

Another use for a statement of wishes is to supplement a Will. One may wish to keep the two statements separate and have the statement of wishes relating to the Will kept with the will and remain confidential until death. The contents of a statement of wishes are generally not legally binding.

 

 

The following table is a quick reference guide:

Documents

When to Use

Last Will and Testament with Spouse and Children

Last Will and Testament made by an individual with spouse and children. Give everything to the spouse first, but if spouse died first, give all to children in equal share.

Last Will and Testament with Children and No Spouse

Last Will and Testament made by an individual with children but no spouse. Give everything to children and their descendants in equal shares.

Last Will and Testament with Spouse and No Children

Last Will and Testament made by an individual with spouse but no children. Give everything to spouse but if spouse died first, give everything to designated charity / in accordance with the law of intestacy.

Last Will and Testament with No Spouse and No Children

Last Will and Testament made by an individual no children and no spouse. Give everything to siblings and their descendants, otherwise give everything to designated charity / in accordance with the laws of intestacy.

Living Will - Advance Directives

Advance directives set out how the patient want to be treated if they become seriously ill and unable to communicate their wishes. In many jurisdictions, it must be witnessed by a medical practitioner and people who are not beneficiaries to the Will.

Statement / Letter of Wishes - Will and Testament

Statement / letter of wishes to provide general guidance to the executor and set out the reasons for distribution. While the document is not legally binding, it can have strong moral sway. This is particularly important where there could be potential challenges to the will in case of unequal distributions. 

Statement / Letter of Wishes - Trustee of Trust Fund

Statement / letter of wishes to provide general guidance to the Trustee on the distribution of the Trust Fund and set out the reasons for distribution. While the document is not legally binding, it can have strong moral sway. 

Statement / Letter of Wishes - Medical and Care

Statement / letter of wishes to provide general guidance to the carer and set out any preferences on medical and end of term care. Whilst this may not be legally binding, the carer will generally try to fulfill such wishes.

  

 
Keywords:

Probate

;  

Grant Of Probate

;  
Documents

Introduction to Will, Probate, Administration and Living Will - Guide

Advance Directives - Living Will

Affirmation or Affidavit for Probate Application with Will - By Executor

Affirmation or Affidavit for Probate Application with Will - By Sole Executor's Attorney

Affirmation or Affidavit for Probate Application with Will - Sole Executor has Died or Renounced

Last Will and Testament - No Spouse No Children

Last Will and Testament - With Children No Spouse

Last Will and Testament - With Spouse and Children

Last Will and Testament - With Spouse and No Children

Letter of Authorisation to Trust Corporation (with WIll) - Residuary Legatees and Devisees

Letter of Authorisation to Trust Corporation (with WIll) - Sole Executor

Letter of Consent to Appointment of Trust Corporation (with WIll) - For Sole Executor from Residuary Legatee

Letter of Consent to Appointment of Trust Corporation (with WIll) - To Residuary Legatee and Devisee

Power of Attorney - Individual - Executor of Will

Renunciation of Probate / Administration - Administrator / Residuary Legatee and Devisee

Renunciation of Probate / Administration - Executor of Will

Statement / Letter of Wishes - Trustee of Trust Fund

Statement / Letter of Wishes - Will and Testament

Affirmation or Affidavit as to Alterations in Will - Witness

Affirmation or Affidavit for Due Execution of the Will - Witness

Affirmation or Affidavit for Probate Application with Will - No Executor Appointed

Affirmation or Affidavit of Handwriting and Signature of the Will - Affirmer

Affirmation or Affidavit of Plight and Condition of the Will - Sole Executor

Statement / Letter of Wishes - Medical and Care