5 reasons to have a will prepared… today
VERY few things are as guaranteed in life as death. Now with that uncomfortable fact out of the way, the core question is, what can we do to prepare for this mortal certainty?
A will gives you the opportunity to put your affairs in order, preferably long before a doctor advises you to do so. In short, a will is a binding legal document which expresses a person’s (testator’s) wishes of how their assets are to be managed and/or distributed once they have died. As such, a will has no legal effect as long as the person is alive. Here are five reasons to have a will prepared right now...an additional five will be shared next week.
You remain in control, even after your death
A will ensures that you still dictate who your assets are distributed to. There will not be a need for anyone to assume that you wanted your favourite car to go to your son, or for your daughter to receive the money in your savings account. It will all be recorded in black and white and your assets (provided that your will is valid and that the assets remain in your estate) will be distributed in accordance with your wishes. In the alternative, your assets would fall into what the law refers to as intestacy and would be distributed in accordance with the provisions of The Intestates’ Estates and Property Charges Act.
Trust and choice
The truth is that for many people, a wife or husband may not be the most trusted and/or appropriate person to administer an estate. However, under The Intestates’ Estates and Property Charges Act, spouses are first in line to take up that role. Having a will would allow you to have the liberty of deciding who will distribute and/or administer your estate and/ or assets once you have transitioned from this life. Ultimately, the selection of an executor (person who will administer an estate) is a careful process, as this person will have legal control over your assets until they are distributed and/or sold. Such responsibility would suggest that it is necessary that an executor should be someone in whom you have absolute trust and confidence.
Empowers executors to take charge
An often overlooked benefit of having a will is that immediately upon your death, it will allow your executor(s) to begin to make crucial decisions about your funeral, assets and the care of your loved ones. The case of Chetty v. Chetty [1916] 1 A.C. 603, among others, establishes that an executor derives his/her title, authority and power to act from the will, once the testator dies. Accordingly, an executor does not have to wait to decide whether rents should be collected from your tenants, or whether monies should be expended to pay for your funeral from your account. A well-drafted will should include all such directions.
Reduces chances of conflict and, in Jamaican lingo, the nasty “dead lef fight”
Many families and friendships have been destroyed as a result of arguments over assets left with no clear indication of who is to get what. It is not uncommon for these arguments to result in violent altercations and possibly, soon after, more than one funeral will have to be planned. A properly drafted will creates certainty about who is to get what and will allow those who perhaps did not benefit, as they would have hoped, to see clearly that it was your decision not to have them inherit the house they expected to get, rather than assume they are being shafted by your new wife or an older sibling, for example. In addition, avoiding a legal battle over “dead lef” assets saves everyone in the long run, as the assets left can be easily distributed and will not depreciate due to being the subject of a ten-year court battle. A 2020 Benz isn’t worth the same in 2030. Further, the legal fees involved in the court battle may have to be paid out of the estate first, before the remaining estate is distributed to the beneficiaries.
You have a will, but got married after it was made. Section 13 of the Wills Act expresses that a will is revoked following the subsequent marriage of the testator (maker of the will). This means that if you make a will today then get married tomorrow, the will becomes null and void. The good news is that a new will can be prepared and signed at any time, and will be valid once it is properly drafted and executed.
Josemar Belnavis, JP, works with Lindsay Law Chambers. Contact him at josemar@llcja.com.