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Why do so many neglect making a will?

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As much as one would like, the reality is that you cannot take your possessions with you, so why do so many people die without leaving a will?  The situation creates confusion and chaos since loved ones are left clamoring for property because the deceased individual failed to leave instructions as to how it is to be rightly divided. Cynthia Ellis-Topsey knows first-hand the problems that may arise.

Cynthia Ellis-Topsey: “I had two major experiences in my life which really impacted on that, on me and the first one had to do with my husband dieng 20+ years ago and because there wasn’t clarity around that there was lot of confusion in my life and that of my children and family members and so it really moved me to a realization that having a will that is discussed and is made aware to all family members is very important.”

Janelle Mckenzie: “Could you share with us what types of problems you encounter?”

Cynthia Ellis-Topsey: Well all of the problems have to do with property and the expectation of the love one in terms of assets and lifestyle and maintaining quality of life of the family members, the children and it’s not specifically material things but the trauma and the pressure on relationships that unfold.”

Senior Counsel Oscar Sabido says making a will is easier than you think.

Oscar Sabido, Attorney: “The will is made when the person signs the will before two witnesses. The will is written out, it has to be in a written form it cannot be in any other way. So the will is made out, it doesn’t have to be anything too fancy it just simply has to state the wishes of the person and identify the property that he wants to leave and then identify the persons to whom he wants to leave the property and then he signs it before two witnesses and those two witnesses sign in front of him and him in front of them. He must be in the mental capacity, he must be in full sound mind to be able to sign the will and whilst that will is sign then that will is kept by the executor  and then when he passes, the testator passes that will is taken to the registry by the executor and presented to the registry for processing and eventually after it is processed and publications are made and everything is done then the will is in a sense proved by a judge of the Supreme Court signing a grant of probate saying this will is proved, the grant is given to the executor to distribute the property in accordance with the will.”

Sabido said that the will is normally kept by the executor of the estate, who then presents it to the registry after the person dies.

Oscar Sabido, Attorney: “The registry keeps a file that is permanent record for all the world to be aware of the fact that the will has been properly processed, publications have been made to people who may have an interest in case they want to object to the will or make an application to the court to set aside the will or they may have another will which they may want to bring forward which they say is the correct will. Whilst that publication process is finished then the file, the court file, is taken to a judge and then she signs the grant of probate but that file remains a permanent record of the Supreme court and it can be looked at any time in the future, in the next hundred years you can look at that.”

There are instances whereby a will can be revoked.

Oscar Sabido, Attorney: “A will can also be in a sense revoked by the subsequent marriage of the person who makes the will. If he makes a will now and gets married ten years later that will is revoked because the presumption is because he has become married he wishes to now make a will for his wife and his children and when he was not married he did not have a wife and children. But if the will says that it is made in contemplation of marriage and the person who becomes his wife, later on, is identified in the will properly as ‘my future wife’ or ‘my bride’ if the will says that then even though he becomes married to the same person to whom he leaves the property in his will that will does not become revoked because it was made in clear contemplation of marriage to that person. But if the will that is made ten years before marriage does not say that it is in contemplation of marriage to a specific person even though he would become married to that person later on the will may be revoked because it’s not clear that that was his intention that he was leaving the property to that person who was his wife.”

Sabido pointed out that the law makes provisions for cases when someone dies without making a will.

Oscar Sabido, Attorney: “Well the law is very clear on that. The law says that if a man does not make a will and he leaves a wife and vice verse the wife will take $600 free of any duties and will also take the chattels, the personal property the chairs, the beds or whatever other furniture that is in the house etc, and then takes one half of the estate of the man – if there are other members of family who are there to share the estate the wife takes the one half and the remaining one half will go first to the parents of the person and then to the brothers and sisters of the person. If it so happens that there are no members of the family as I mentioned which are the parents, the brothers and sisters, the grandparents and the uncles and the aunts there are none of those then the spouse takes all of it but there is one condition that there are no children, but if there are children then he must share the property with the children as to one third two thirds for the children. But if the spouse is the only one alive and there are no children and there are no family members he takes everything.”

A will cannot be made by word of mouth and must be in writing.

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