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DIY will
18/07/2006 The Star ARTICLES OF LAW By BHAG
SINGH
INCREASINGLY more people want to make a will today and there are companies
and individuals offering will writing services, though this is a task that
was earlier thought to be better entrusted to a lawyer.
A reader who calls himself Chan who had made a will through a will-writing
service would like to change the will that was made for him and he wants to
know whether he can do it himself.
Certainly there is nothing that prohibits a person from preparing his own
will. It is also not important if a solicitor or a professional will writer
is involved.
What is important is that the person who prepares the will has the expertise
to prepare the document.
Preparing a meaningful will is not a matter of looking at a few examples and
then choosing one. In many cases it requires the person (called the donor)
who is giving away his property through a will to be clear as to what he has
in mind.
A will enables a person to direct how his property will be dealt with and
whom it will go to when he is no longer alive. The person who prepares the
will must clearly put in writing the wishes of the donor.
In the case of non-Muslims, the Distribution Act 1950 provides for how the
property is to be distributed in case there is no will. However, for Muslims
only one-third of the estate at most can be willed away. The remaining
two-thirds must be distributed according to Syariah law. A will therefore
allows the donor to have his wishes carried out to the extent that the law
permits.
An example of a potential problem can be better appreciated in the following
example that involves non-Muslims. The analogy will nevertheless apply to
Muslims in respect of the one-third they are allowed to will away.
In many cases a person would want to leave all his property to his wife and
then wish that the property will go to their children equally or any other
proportions desired. Thus he may in his will leave all the property to the
wife.
In such event on his death the wife will inherit all the property. She then
becomes the owner. In law she would be entitled to give away the property as
she wishes. Of course in most cases she will do what the husband wished, but
legally she is not bound to do so. She can prefer some children to others or
even leave them out completely. So what do you do?
In many cases the husband and wife may make cross wills with each giving
his/her property to the other who survives and then the property to go to
the children equally or in whatever proportion desired.
However, once the husband or wife dies, the surviving party is entitled to
change his or her will. The law does not impose any restrictions on this
because a will is always revocable by the donor who made it.
Where a person has an absolute desire to ensure that the property eventually
goes to the children, an alternative would be for the property to be held in
trust for the children by the surviving spouse with the spouse having the
option to the enjoyment and benefit of the assets.
In this case, the benefits to be enjoyed by the surviving spouse will have
to be defined in clear terms so that the objective of the donor may be best
achieved. For this purpose the extent of the benefit will need to be defined
as well.
What would be the position in the remote possibility of the entire family,
including the children, passing away? This could lead to considerable
uncertainty.
To provide for such an eventually the will could state that the husband’s
assets will go to his side of the family and the wife’s assets to her side.
Or it may be that in such an event the whole estate or part of it could go
to a charitable body or for specified charitable purposes.
Then there are situations where either the husband or the wife may wish to
give specified amounts to his or her family after the person dies. This
could again be provided for in the will specifically.
Hence a will is capable of dealing with a person’s assets after his/her
death in considerable detail and a great degree of certainty.
Coming back to the earlier question as to whether a person can prepare his
own will, there is certainly no reason why this cannot be done. In doing so
the matters set out above could be taken into consideration.
However, the individual should familiarise himself with the intricacies of
the subject and not merely copy another person’s will.
At this point it is only possible to set out the formalities which must be
complied with. A will must be in writing and its execution must be witnessed
by two witnesses who together with the donor must all sign in the presence
of each other.
Finally it must be pointed out that anyone who wishes to prepare a will
himself should read the Wills Act 1959, the Distribution Act 1958 and the
Inheritance (Family Provision) Act 1971. |
