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EVERYDAY LAW – Making a will the best option

Cecil McCarthy

EVERYDAY LAW – Making a will the best option

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Administration of estates continues to present significant challenges for lawyers and others concerned in the process.
It is my view that several problems would be removed if more people would make wills.
One problem that frequently arises relates to who is entitled to apply for letters of administration.
For example, where there are several siblings, very often a caveat is filed by one or more of those who did not make the application for the administration of the estate. This leads to unnecessary delays in the process of obtaining a grant.
Sometimes, one sibling because of age or because of having lived at home longer with the deceased, believes they have the sole right to apply for administration and very often the sole right to the deceased’s property as well.
Where a will has been made, the executor named in the will is entitled to apply for probate. Provided all precautions are taken to ensure the validity of the will, the process of obtaining probate is likely to be shorter and less controversial. 
A will permits you to dispose of your property to whom you wish. Your freedom to dispose of your property, however, is restricted by provisions in the Succession Act which gives your spouse a right to share in the estate.
1. If you die leaving a spouse and no children or children who have all reached 18, then your spouse is entitled to a one-half share as a legal right.
2. If you die leaving a child who is a minor or who, because of some mental or physical disability, is incapable of maintaining himself, then your spouse is entitled to a one-quarter share as legal right.
Apart from the provisions in the Succession Act, a testator generally has the freedom to dispose of his property to whom he chooses. The primary motivation for making a will is therefore to ensure a distribution of the estate in accordance with your wishes.
It is generally true that in most cases an estate can be wound up more simply if a will is made. The will affords you the opportunity of appointing an executor who should usually be a close friend or relative who consents to perform the role of administering the estate.
Principally, this involves collecting the assets of the deceased, paying off the testator’s outstanding debts and distributing the estate according to law.
If you opt not to make a will, your property will be divided in accordance with the provisions of the Succession Act, after your next-of-kin or some other relative has applied for, and been granted, Letters of Administration to the estate.
Some examples of how your property would be distributed if you die without having made a will are:
1. If you die leaving a spouse, no child or next-of-kin, the spouse takes the whole estate.
2. If you die leaving a spouse and children, the spouse gets a one-third share and the remainder is equally divided between the children.
3. If you die leaving a spouse and one child, the spouse gets a two-thirds share and the child one-third share.
4. If you die leaving neither spouse nor child, your estate shall be distributed between your mother and father in equal shares. If only one of your parents survives, the survivor will get the entire estate.
Another option for the individual is to make an inter vivos gift. One major disadvantage of this is its finality. If you transfer property by deed of gift, the transfer takes place on execution of the deed. You therefore will not have the option of changing your mind if circumstances change which warrant, in your judgment, a change in the beneficiary of your gift.
Questions of cost may also be important. For example, a deed of gift of land attracts property transfer tax of 2.5 per cent of the value of land. If you transfer to a beneficiary a piece of land worth $100 000 then $2 500 must be paid along with legal fees.
Despite the costs involved, in some circumstances, a deed of gift is your best option.
There are several other factors which I have not mentioned which may be significant. These include the possible effect of separation where spouses are involved and the nature of the ownership of property and its effect on its transferability by will.
It is because of the several matters that can impact on your decision that I advise you to consult with your attorney-at-law to assist you with ensuring that your wishes are put into effect.
Cecil McCarthy is a Queen’s Counsel.