A will is a declaration made by a person during his lifetime, of his intention concerning disposal of his property after his death. In relation to wills:
a) Explain the characteristics of a valid will
b) Describe the formalities of a valid will
c) Explain the ways in which a will can be revoked
d) Give details of the duties of a personal representative
ANSWER
a) Characteristics of a valid will
- Ambulatory: a will is said to be ambulatory in that it only speaks after death. It distributes apersons property in death.
- Revocability: a will is revocable by the testor at any time when he has capacity to make it.
- Capacity: for a will to be legally valid the testator must have had the requisite capacity. Thus, not every person can make a will.
- Formalities: the validity of an oral or written will is dependent upon compliance with the formalities prescribed by law.
b) Under section 8 of the act, a will may be made either orally or in writing.
The validity of an oral will is dictated by two factors:
- The declaration must be made before two or more competent witnesses.
- The testators death must occur within three months of the declaration.
However, an oral will made by a member of the armed forces or merchant marine during a period of active service remain valid after three months provided death occurs during the same period of active service.
Formalities of a written will
- Writing: there must be some writing. The law does not prescribe any form. It may be handwritten, typed or printed. The law does not prescribe the wording of a will.
- Signature or mark: it must contain the signature or mark of the testor or some other person who signs in the presence of and in accordance with the directions of the testator.
- Position of signature: the signature or mark must be placed as to show that it was intended to give effect to the writing as a will.
- Attestation: the will must be attested to by two or more competent witnesses. The law does not insist on any form of attestation.
- Presence of witnesses: all witnesses must sign the will in the presence of the tastator. However, they need not be present at the same time.
c) Ways in which a will can be revoked
- Another will or codicil: under sec 18 (1) of the Law of Succession Act, the will or codicil revoking the earlier will must declare intention to revoke it.
- Destruction: under sec 18 (1) of the Act a will is revocable by burning, tearing or otherwise destroying it with an intention to revoke it. Such destruction may be by the testor or some other person acting in accordance with the directions of the testor. A person can only revoke a will by destruction, if he has capacity to make it.
- Marriage –Under section 19 of the Act, the marriage of the testator revokes the will unless the will is made with contemplation of a marriage with a specific person. Such a marriage does not revoke the will.
d) Duties of the personal representative
- To pay out of the deceased estate reasonable funeral expenses.
- To collect in all the free property of the deceased including debts owned or money payable.
- To pay out of the deceased estate all expenses of obtaining the grant or administration of the estate.
- To ascertain and pay all the debts of the deceased.
- To give a full and accurate inventory of the assets and liabilities of the deceased within 6 months of the grant
- To distribute or retain in trust all assets remaining after payment of expenses and debts.
- To complete the administration of the estate other than in respect of continuing trusts within six months.
- To produce to the court a full and accurate account of confirmation of the grant or such other time as the court may permit