Phras­es like “Mam­my say the house was for me” or “Grand­pa did say I was to get the van and the land in the back” are not un­com­mon phras­es to be heard with­in com­mu­ni­ties as ex­pressed by fam­i­ly mem­bers and even friends of a loved one af­ter the loved one has passed away.

Far too of­ten, we see and hear of sit­u­a­tions where af­ter the death of a per­son, there is con­tention and even phys­i­cal fights among sur­viv­ing fam­i­ly mem­bers and friends over the as­sets left be­hind by the de­ceased. These as­sets left be­hind by the de­ceased are col­lec­tive­ly re­ferred to in law as the Es­tate of the De­ceased.

While the process of prepar­ing a Will may seem daunt­ing, prepar­ing a will which sets out your de­sire for the dis­tri­b­u­tion of your as­sets af­ter death does have sig­nif­i­cant ben­e­fits, the pri­ma­ry ben­e­fit be­ing the min­imi­sa­tion of po­ten­tial con­flict among loved ones over your es­tate af­ter death.

What is a will and what

can I in­clude in it?

A will is a le­gal doc­u­ment that out­lines how a per­son’s as­sets should be dis­trib­uted af­ter their death. The per­son who pre­pares a will is called a tes­ta­tor and such a per­son can in­clude any as­set or prop­er­ty they deem valu­able to them in a will to be dis­trib­uted to a ben­e­fi­cia­ry or ben­e­fi­cia­ries af­ter their pass­ing.

Some com­mon as­sets of­ten in­clud­ed in wills are:

• Re­al es­tate such as hous­es

• ↓Land and com­mer­cial build­ings

• Busi­ness­es

• Ve­hi­cles

• ↓Mon­ey and/or sav­ings held at banks and oth­er fi­nan­cial in­sti­tu­tions

• Stocks and shares,

• Jew­ellery

• Art­work

It should be not­ed, how­ev­er, that in some in­stances where the prop­er­ty is joint­ly owned by the tes­ta­tor and an­oth­er per­son, the prop­er­ty can­not be legal­ly dis­trib­uted by way of a will as the law of sur­vivor­ship takes prece­dent in such cir­cum­stances and the de­ceased’s share in the prop­er­ty in­stead au­to­mat­i­cal­ly de­volves to the sur­viv­ing co-own­er(s) of the said prop­er­ty.

How­ev­er, peo­ple who own prop­er­ty as ten­ants in com­mon can leave their share of the prop­er­ty to a named ben­e­fi­cia­ry in their will.

Le­gal re­quire­ments

for prepar­ing a will

For a will to be legal­ly valid, the fol­low­ing le­gal re­quire­ments must be sat­is­fied:

• The tes­ta­tor must be at least 21 years of age.

• The tes­ta­tor must have the in­ten­tion and men­tal ca­pac­i­ty to make the will. This means the tes­ta­tor must be of sound mind. A med­ical re­port from a doc­tor may prove this.

• The will must be writ­ten. It is not suf­fi­cient for one to tell his fam­i­ly mem­ber or friend that he is de­sirous of that per­son hav­ing own­er­ship of their as­set(s) up­on their pass­ing since ex­press­ing this de­sire does not and can­not have any le­gal ef­fect.

• The words con­tained in a will must be leg­i­ble.

• A will must in­clude the tes­ta­tor’s and wit­ness­es’ name, ad­dress, oc­cu­pa­tion, and the date on which the will was pre­pared.

• The tes­ta­tor must iden­ti­fy one or more ex­ecu­tors by name and ad­dress. An ex­ecu­tor is the per­son or peo­ple ap­point­ed by the tes­ta­tor to ad­min­is­ter the will and ful­fil its terms. An ex­ecu­tor is al­so re­spon­si­ble for set­tling any debts or ad­dress­ing any li­a­bil­i­ties which arise against the de­ceased’s es­tate. Giv­en the key role to be played by an ex­ecu­tor, a tes­ta­tor should en­sure that he or she care­ful­ly con­sid­ers who to ap­point to ad­min­is­ter their will as such per­son should be one that the tes­ta­tor trusts to en­sure that the terms of his will are ef­fi­cient­ly and ef­fec­tive­ly ful­filled. A tes­ta­tor may legal­ly ap­point up to four ex­ecu­tors in their will, but this is not manda­to­ry.

• A will must al­so iden­ti­fy a ben­e­fi­cia­ry or ben­e­fi­cia­ries by name and re­la­tion to the de­ceased. A ben­e­fi­cia­ry is any per­son who is named in a will by the tes­ta­tor to re­ceive as­sets from the de­ceased’s es­tate up­on his or her pass­ing. It should be not­ed that it is legal­ly per­mis­si­ble for a ben­e­fi­cia­ry to al­so be ap­point­ed as the/an ex­ecu­tor of the will.

• A will must in­clude a resid­uary clause. The resid­uary clause treats with the re­main­ing as­sets of the de­ceased’s es­tate which had not been specif­i­cal­ly iden­ti­fied or ad­dressed in the will. The resid­uary clause al­so ac­counts for any as­set which may have come in­to the pos­ses­sion of the de­ceased af­ter the will was pre­pared or any ben­e­fit owed to the de­ceased which may have on­ly been fi­nalised af­ter death for ex­am­ple pen­sion or gra­tu­ity pay­ments.

• A will must be signed at the end of it by the tes­ta­tor in the pres­ence of two wit­ness­es who must al­so sign the will, af­ter the tes­ta­tor, in the pres­ence of each oth­er and the tes­ta­tor. It is es­sen­tial that nei­ther wit­ness is a ben­e­fi­cia­ry named in the will, as any gift made in their favour would fail and would not pass to them.

Con­clu­sion: A will is there­fore a crit­i­cal frame­work that en­sures the prop­er dis­tri­b­u­tion of as­sets. In­di­vid­u­als who have in­quiries about the process should con­sult with a pro­fes­sion­al on how to pro­ceed.

This ar­ti­cle is not le­gal ad­vice. Con­sult an at­tor­ney for le­gal is­sues.

Sub­mit­ted By: Mariesel Davis, Le­gal Of­fi­cer, Civ­il Le­gal De­part­ment, Le­gal Aid and Ad­vi­so­ry Au­thor­i­ty, 23 Stan­more Av­enue, Port-of-Spain.

Con­tact: 638-5222

Email: in­fo@laaa.gov.tt

Web­site: www.laaa.org.tt