FRANKLY SPEAKING: There’s a will and a way
SEVERAL WEEKS AGO, I was awoken from a sound sleep by the most excruciating pain imaginable. My neighbour rushed me to an emergency clinic and the staff there immediately went about trying to alleviate the agony caused, as it turned out, by one little kidney stone. I moaned in pain, watching the bag with the Voltaren drip empty with no effect and waiting for the bright light to appear.
Even then I still had the presence of mind to chide myself for not having written a will. I was sure that I was about to breathe my last at any moment as I felt that there was no way someone could survive such intense pain. Happily, my last breath was somehow postponed.
Having gone through that ordeal, I related the experience to some of my contemporaries and was shocked to discover that so many of them have not made any preparations to distribute their estates after death. Their reasons varied: some never really thought about it; others believed that they needed a lawyer but never got around to it; and another set did not think that they had enough assets to justify going through the expense of making a will.
Best to have will
I must confess that I am no expert on wills and estate planning but felt forced to point out to my friends that it is always best to have a will in place – if for no other reason than that it would tend to reduce or eliminate the civil war that would erupt over your estate while you are peacefully at rest. If you do not leave a will, the Succession Act sets out a formula for the distribution of the estate of a person who dies intestate.
It would be ideal to consult a lawyer to prepare your will but that is not absolutely necessary. Normally, it is an offence for non-lawyers to practise law but, Section 12 (4) of the Legal Profession Act specifically allows anyone to draw and prepare a will.
However, if you choose to dispense with the services of a lawyer, there are a few basic things that you must know. The will must make provision for your spouse and minor children or it could be successfully challenged. Providing for a spouse does not mean that you can leave a shilling like many men did in the old days. Since 1975, the Succession Act gave the spouse a legal right to half of the will maker’s estate if there are no children, and if there is a child, the spouse would be entitled to one-quarter of the estate. Mind you, the will maker can give more.
There are a number of ways to get around leaving a part of the estate to a spouse: don’t get married; don’t cohabit with anyone for five or more years; get your intended to sign an antenuptial contract; or be absolutely broke at death.
Under normal circumstances, the will must be signed by the person making it and by two witnesses; all of whom must be present in the same room and see each other sign.
The only exception is where the will is written throughout in the proper handwriting of the will maker, in accordance with Section 63 of the Succession Act.
In most cases, after the death of your loved one, you might still need the services of a lawyer to settle the estate. If there is a will, the lawyer would have to apply to the court for a grant of probate. In the case where there is no will, you might need a lawyer to apply for letters of administration, if the deceased left substantial assets.
There is an alternative but little known procedure for the administration of small estates that would prevent the estate from being depleted by legal fees: that procedure can be found at Section 5 (1) of the Public Trustee Act. It states:
“Any person who in the opinion of the Public Trustee would be entitled to apply to the High Court for an order for the administration by the High Court of an estate, the gross capital value whereof is proved to the satisfaction of the Public Trustee to be less than fifteen thousand dollars, may apply to the Public Trustee to administer the estate, and where any such application is made and it appears to the Public Trustee that the persons beneficially entitled are persons of small means,the Public Trustee shall administer the estate, unless he sees good reason for refusing to do so.”
In essence, persons who are entitled to benefit from an estate of $15 000 or less can apply to have the Public Trustee administer the estate, which would save the estate the cost of employing the services of a lawyer. The Public Trustee is the person who holds the office of Solicitor General.
The upper limit of $15 000 for a small estate was set in 1975. It is time the figure was revised upward. Unfortunately, with so many lawyers in Parliament, it might not be a priority.
Caswell Franklyn is a trade unionist and social commentator.