Tobe Easton of Easton Lawyers
In last month’s article I discussed formalities that must appear in a will in order for it to be a valid document.
In this article I discuss matters that should appear in a will and why. A will should contain the following:
1. EXECUTORS: Appointment of one or more executors. The executor’s job is to carry out the wishes of the testator as these are set out in the will. Provided that the person is aged 18 or over and does not lack mental capacity any person can be appointed to that position including a beneficiary of that will. It is always a good idea to appoint two or more executors in case one executor predeceases the testator.
2. GIFTS: The will should also discuss how gifts of property are to be distributed.
3. RESIDUE: The residue means the left-over property of the testator after the testator has given away specific items of property. An example could be where the testator gives his house to a beneficiary but does not mention what is to happen with the rest of his assets such as cash and shares. If the will contained a residue clause then these non-specific and non-itemised pieces of assets will be able to be distributed. If, on the other hand, the will did not contain a residue clause then the result would be partial intestacy. Intestacy means that those items of property not specifically gifted away would have to be distributed in terms of the rules of intestacy rather than as one might imagine that the testator would have wanted.
4. ATTESTATION: The attestation of a will states that the testator signed the will in the presence of both witnesses. The best place for an attestation clause to appear is at the end of the will. Should the will not contain an attestation clause and the witnesses not be found to clarify that they were both present when the testator signed the will, then it may be impossible to obtain a grant of probate of the will.
For clarification, probate means that the authenticity of the deceased person’s will has been proven and confirms the executor’s authority to administer the estate in accordance with the provisions of the will.
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