The Importance of having a Will

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In 1948 in a dying farmer in Saskatoon, Canada wrote his will on the fender of the tractor he was trapped beneath, and the courts accepted it as legally binding.  Cecil Harris scratched out the will as he was dying, having been trapped for 10 hours beneath the tractor during a heavy storm.  Using a pocketknife, Harris wrote on the tractor’s fender the words: “In case I die in this mess, I leave all to the wife.”  He died in the hospital that night from his injuries.  A judge ordered that portion of the tractor cut off and despite the fact it was not witnessed, because it was made in immediate contemplation of death, the fender was recognised as a valid will.

It is surprising the high proportion of people who die every year without having made a will, or intestate, to use the legal term.  The rules as to who inherits your assets when there is no will are set out in the Succession Act 1965.  For example, if you die intestate and leave a spouse and children, the law provides that your spouse will only take two thirds of your assets, and the other third will be divided up between all the children – no matter what their circumstances or ages.

An alternative to making a will is to transfer the family home and other assets into the joint names of both spouses.  On death, the asset will automatically transfer to the survivor.  However, there may be assets that remain in one spouse’s name, for example the car, and business property.  And when one spouse dies, the surviving spouse will have to consider who will inherit the assets when they die.

Wills are not only about gifts of assets.  They are also used to appoint executors, who are your legal representatives when you die.  The executor’s main function is to carry out your wishes.  They may have to register the will in a process known as “probate” (the word stems from the Latin word “probare” meaning “to prove”) in which the will is registered with the State, through the courts service. A return is also made to the Revenue.  The grant of probate that issues is the official document that allows the executor sell and transfer assets according to the wishes of the deceased.  The executor is responsible for discharging funeral expenses and other debts, including taxes.

Wills can appoint legal guardians of children, and can also be used to establish trusts when there are minor or disabled children.  And very importantly, wills can be drafted to minimise inheritance tax.

Disputes often arise – especially when the will is poorly drafted or vague.  The most common dispute between the children is over the sale of the family home. Often one or more children will refuse to sell the home in which they grew up.  There are often bitter arguments over items of sentimental value.

Another frequent dispute concerns children who believe that the division of assets is unfair.  The disappointed child can challenge the will in court by alleging that the parent failed in his moral duty to provide for the child, or by arguing that the will itself was not validly made.  These cases are difficult for all concerned, due to the hurt caused, and the high costs incurred.  Consideration for the interests and needs of all the children should be discussed with a solicitor when drafting a will.

Wills need not be overly long or complicated, and the best wills are clear and use a minimum of legal jargon.   Home-made wills often cause problems, and many come to the attention of the courts. An old case involved a home-made will, which the deceased made on his deathbed.  It is the shortest will recorded, consisting of three words – “All to Mother”.  The question arose – was “Mother” the deceased’s mother, or his wife?  The court decided that he meant his wife, after hearing evidence that he always addressed her as Mother, and never by her name.

By David Williams, Solicitor

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