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Why and How to Make a Will

Why and How to Make a Will

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Published by Law Lord
A short paper on Succession law from a Caribbean perspective
A short paper on Succession law from a Caribbean perspective

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Published by: Law Lord on May 28, 2013
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1 Why make a will? By Anthony Hall – from a Barbadian perspective. Myths: Young and have plenty of time.

If I make a will I will die. Making a Will:
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ensures that your property and possessions are dealt with as you wish means you can choose who is going to be responsible for sorting out for financial affairs (your executors) if you have young children, means you can appoint guardians to ensure they are looked after properly. Guardians are the people you would wish to look after your children in the event of the death of you and/or their other parent. They can also be the executors of the will or beneficiaries.

• • •

can specify any particular gift to friends and charities that you may wish to make can help avoid or minimise your liability for inheritance tax most importantly, ensures you have left a clear statement of your wishes, helping to avoid adding extra stress at what is already a difficult time for your family you should not assume that if you do not have a Will that your spouse will inherit everything The Adventist Home, page 396, paragraph 5 Chapter Title: Provision for the Future

Many are not exercised upon the subject of making their wills while they are in apparent health. But this precaution should be taken by our brethren. They should know their financial standing and should not allow their business to become entangled. They should arrange their property in such a manner that they may leave it at any time. The Adventist Home, page 397, paragraph 1 Chapter Title: Provision for the Future Wills should be made in a manner to stand the test of law. After they are drawn, they may remain for years and do no harm, if donations continue to be made from time to time as the cause has need. Death will not come one day sooner, brethren, because

2 you have made your will. In disposing of your property by will to your relatives, be sure that you do not forget God's cause. You are His agents, holding His property; and His claims should have your first consideration. Your wife and children, of course, should not be left destitute; provision should be made for them if they are needy. But do not, simply because it is customary, bring into your will a long line of relatives who are not needy. Counsels on Stewardship, page 326, paragraph 2 Chapter Title: Preparation for Death Living Benevolence or Dying Legacies The Lord designs that the death of His servants shall be regarded as a loss, because of the influence for good, which they exerted, and the many willing offerings which they bestowed to replenish the treasury of God. Dying legacies are a miserable substitute for living benevolence. The servants of God should be making their wills every day, in good works and liberal offerings to God. They should not allow the amount given to God to be disproportionately small when compared with that appropriated to their own use. In making their wills daily, they will remember those objects and friends that hold the largest place in their affections. Who Inherits On Intestacy? If there is a valid Will then the people who will inherit are the beneficiaries named in the Will. NB Care is needed if any of the named beneficiaries have also died, or were previously married to the deceased. If there is no Will, then the law states a statutory order of family who will inherit as follows: Surviving Relatives 1. Spouse only 2. Spouse and Issue Person(s) entitled to the estate Surviving Spouse absolutely (a) Surviving Spouse takes

Personal

3 Chattels
• •

Ÿ125,000 Life interest in Ÿ residuary estate

(b) issue takes residuary estate at age 18 subject to life interest in Ÿ of surviving spouse in equal shares per stirpes (a) Surviving Spouse takes

Personal Chattels Ÿ200,000 Ÿ residuary estate absolutely

3. Spouse and Parents

(b) Parent(s) take Ÿ residuary estate in 4. Spouse and Brother(s) and/or Sister(s) of the whole blood and/or issue of such who predeceased the intestate equal shares (a) Surviving Spouse takes

Personal Chattels Ÿ200,000 Ÿ residuary estate absolutely

• •

4 (b) Brother(s) and Sister(s) and/or issue takes Ÿ residuary estate at age 18 in equal shares per stirpes Issue at age 18 in 5. Issue equal shares per stirpes Parent(s) in equal 6. Parent(s) 7. Brother(s) and/or Sister(s) of the whole blood and/or issue of such who predeceased the intestate shares Brother(s) and Sister(s) and/or issue at age 18 in equal shares per stirpes Half brother(s) and 8. Brother(s) and/or sister(s) of the half blood and/or issue of such who predeceased the intestate sister(s) and/or issue at age 18 in equal shares per stirpes Grandparent(s) (in equal shares) Uncle(s) and/or Aunt(s) and/or issue at age 18 in equal shares per stirpes Such Uncle(s) and/or Aunt(s) and/or issue at age 18 in equal shares per stirpes The Crown as bona vacantia

9. Grandparent(s)

10. Uncle(s) and/ or Aunt(s) of the whole blood and/or issue of such who predeceased the intestate

11. Uncle(s) and/or Aunt(s) of the half blood and/or issue of such who predeceased the intestate

12. No relative as mentioned above

5 What is a Will? Generally a will is a document in writing by which the person making it provides for the distribution or administration of property after his death. It may also revoke previous wills and appoint executors, trustees and guardians. Formal Requirements For a will to be valid and consequently to be admitted to probate, the following requirements must be met: (a) It must be made by a person who has attained the age of majority; (b) It must comply with certain formal requirements laid down by statute. (c) The testator or the person making the will must have the testamentary capacity or what is referred to as the animus testandi to make such will. Formalities No will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned (that is to say):-it shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. The relevant statutory provision of each territory provides that the will can be signed for or on behalf of the testator by some other person in his presence and by his direction. This is usually done if the testator is blind, illiterate or physically infirm. The person signing for the testator can either sign the testator's name or his own name. Gifts to Witnesses Statute provides that a legacy to an attesting witness or the spouse of an attesting witness or anyone claiming under that witness will be null and void, although the person

6 so attesting can be admitted as a witness to prove the execution of the will or its validity or invalidity, as the case may be.

ANIMUS TESTANDI

In order to possess the necessary animus testandi to make a will, it must be established: (a) that the testator had the mental capacity to make the will; (b) that the testator knew and approved of the contents of his will; and (c) that the will was that of a free and capable testator, that is, he must have exercised his genuine free choice in the making of his will and more particularly that he did not make it as a result of the undue influence or fraud of another. Mental Capacity The modern test of mental capacity was laid down in the case of Banks v. Goodfellow. According to that case mental capacity means that the testator must be of "sound disposing mind and memory". Sound Disposing Mind To constitute a sound, disposing mind: (a) the testator must have an understanding of the nature of the business in which he is engaged; (b) he must understand who are the persons who are to be the objects of his bounty; and (c) he must understand the manner in which his property is to be distributed among them. Knowledge and Approval A testator must not only have the mental capacity to make a will but he must also know and approve of its contents at the time of execution thereof, or, alternatively, as was stated in the case of In the Estate of Wallace0, it suffices if the testator knows and approves of the contents of the instructions that he gives to a solicitor for the preparation of a will provided that:

7 (a) the will is prepared in accordance with his instructions; and (b) at the time of execution he is capable of understanding and understands that he is executing a will for which he has given instructions. Classes of Persons The court would require affirmative proof of knowledge and approval with respect of certain classes of persons, for example, dumb, blind and illiterate persons. When a person is unable to speak or read or write and gives instructions for his will by signs, the court would require evidence as to the signs used establishing that the testator understood and approved of the contents of his will. If the testator is blind or illiterate, the court usually requires evidence that the will was read over to him before he executed the same and that he understood it. This is normally satisfied by an affidavit to that effect deposed to by one of the attesting witnesses. In cases in which persons are affected by mind-distorting substances such as drink and drugs there is a presumption of capacity. If, however, there is opposition to the will or if testamentary capacity is challenged, the court would require affirmative evidence of the attesting witnesses or persons present at the time of execution that notwithstanding the inebriation the testator had the necessary capacity. With physically infirm and elderly persons, if testamentary capacity is challenged, cogent proof is required that the testator knew and approved of what he was doing. Suspicious Circumstances When a will is prepared and executed under circumstances which raise a well grounded suspicion that the will or some provision in it did not express the mind of the testator, the will or that provision will not be admitted to probate unless that suspicion is removed by affirmative proof of the testator's knowledge and approval. In the case of Wintle v. Nye, Viscount Simony noted that: the degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may on the other hand be so grave that it can hardly be removed.' As Cummings J. A., however, observed in his dissenting

8 judgment in Thomas v. Thomas' Each case must be determined upon the facts of that particular case. One of the situations that will excite the suspicion of the court is when one of the beneficiaries under the will is also responsible for its preparation such as an attorneyat-law. But as Lindley LJ stated in Tyrrellv. Painton suspicious circumstances are not confined to the single case in which a will is prepared by or on the instructions of a person taking large benefits under it, but extends to all cases in which exist circumstances that excite the suspicion of the court; a view which was echoed by Lord Wilberforce in the Privy Council decision of Lucky v. Tewari. And what are these circumstances? (1) Marked departure from previous testamentary dispositions. (2) Absence of independent advice. (3) Secrecy surrounding the execution of a will. (4) Character of the attesting witnesses. (5) Signature of the testator shaky or materially different from previous signature. (6) Leaving property or making dispositions to strangers and disinheriting next of kin, for example, children in favour of others. It should be noted that these circumstances must attend or be present at the time of execution of the will and must not be extraneous and/or subsequent to it.

Undue Influence The testator must not only be mentally competent and know and approve of the contents of the will but he must also exercise his free will, that is, the will must not be the result either of undue influence or of fraud of another. Undue influence is pleaded interchangeably with suspicious circumstances by persons contesting wills. In probate matters there is no presumption of undue influence

9 save and except for St Lucia where such a presumption arises in the following relationships; minister of religion/parishioner, medical doctor/patient, legal adviser/client. As a result if one raises this plea, it must not only be specifically pleaded but it must also be affirmatively proved. It is difficult to succeed on this plea as distinct from want of knowledge and approval. This is reflected and confirmed by the case law in the area. What is Undue Influence? In the case of Boyse v. Rossbarough it was stated that undue influence must be an influence exercised in relation to the will itself. It must be of such a nature that the testator was not acting as a free agent but was acting under undue control. As Sir J.P. Wilde observed when summing up to the jury on the question of undue influence in the oft-quoted case of Hall v. Hall. In a word a testator may be led not driven; and his will must be the offspring of his own volition and not the record of someone else's. Undue influence may take different forms. At one extreme there may be force. At the other extreme the pressure exerted may simply be talking incessantly to a weak and feeble testator in the last days of his life so as to fatigue his brain and induce him, for quietness' sake to give way to pressure. But whatever form it takes the testator must be coerced. Accordingly to constitute undue influence the testator must be coerced into making a will or part of a will which he does not want to make. 91 However persuasion, appeals to the affections or ties of kindred or to a sentiment of gratitude for past services are all legitimate and may be fairly pressed on a testator. 92 The case of Parfitt v. Lawless911 is instructive on this point. In that case a Roman Catholic priest had resided with the testatrix and her husband for many years as chaplain and for a part of the time as confessor. It was held that there was no evidence to go to a jury on an issue of undue influence and that natural influence exerted by one who possesses it to obtain a benefit for himself is undue inter vivos; but such natural influence may be lawfully exercised to obtain a will or legacy.

10

RESTRICTIONS ON TESTAMENTARY FREEDOM

GENERAL INTRODUCTION One of the fundamental principles governing the law of testate succession is that of testamentary freedom, i.e. the right of a testator to dispose of his property as he wishes. Indeed in most of the Caribbean territories a testator still enjoys this unrestricted testamentary freedom. However in Barbados, Guyana, Jamaica and Trinidad ~ Tobago,’ this freedom is not an unfettered one. In these jurisdictions, qualifying members of the deceased’s family circle have been given the statutory right to apply to the court for financial provision out of the deceased’s net estate in the following circumstances: (a) in cases of testacy — where the deceased’s will has failed to make any or any adequate provision for them; PERSONS WHO MAY APPLY FOR FINANCIAL PROVISION Lawful Spouse FORMER SPOUSE A former spouse may apply to the court for reasonable provision out of the deceased’s net estate on the ground that the deceased did not make reasonable provision for his or her maintenance. This is provided that: (a) (b) he/she had not remarried during the deceased’s lifetime or; the marriage had not been annulled or dissolved.

CHILDREN OF THE DECEASED It is to be noted that a son or daughter of the deceased includes one who is (i) legally adopted by the deceased, (Guy: s. 2 (6) FDPA (ii) born out of wedlock to the deceased, (Guy: s.2(6) FDPA T&T Cap 46:03) T&T Cap 46:07)

11 3. a child who is en ventre sa mere. Trinidad & Tobago More particularly for the purposes of family provision applications, a child of the deceased includes: (a) (b) (c) a daughter who has not married irrespective of her age (until her marriage)- s. 90 an infant son (that is a son under the age of twenty-one years) – s 90 (1) (c) Ch 8 A son or daughter who is by reason of some mental or physical disability 9(1) (b) Ch 8 No. 2 No. 2; s. 4 Ch 46:06 Age Of Majority Act. incapable of maintaining himself or herself. ( -s. 90 (1)( c) Ch 8 No. 2 However, a child of the deceased does not include: (a) (b) a child of the family; or a daughter of the deceased who is under the age of twenty one years and

married. REASONABLE PROVISION ORDERS Test Applied Testacy — As was stated by Me Garry J in Re Goodwin deceased and quoted with approval in the Trinidad & Tobago High Court judgment of Taylor, Taylor. Phi/bert. ‘The question is simply whether the will or the disposition has made reasonable provision, and not whether it was unreasonable on the part of the deceased to have made no provision or no larger provision for the defendant.’

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