BE SPECIFIC WHEN NAMING YOUR EXECUTOR

A clause in a will appointing executors in the alternative without stating the circumstances in which they are appointed is void. The Supreme Court was recently required to exercise its power to rectify a will that appointed as executor, “my solicitor … or any solicitor in her employ.” The clause didn’t indicate any order of preference or hierarchy between the solicitor or another employed by that solicitor. For that reason, when the solicitor applied for a grant of probate the matter was referred to a Judge for direction because...

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A HANDWRITTEN NOTE THAT COULD CHANGE A WILL

Uncertainty arose when the author of a will who left her property to her two children also left a separate handwritten note saying that her son could ‘use’ the house for as long as he ‘needs’ it. Was the note part of her will? If so, how long could her son use the house? These issues had to be considered in a recent case in the Supreme Court. The deceased executed her last will and testament in January 1993 which included the wording, “I give my residence as at the time of my death to my executors on trust for my said son … until...

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ARE STEP-CHILDREN “MY CHILDREN”? RECTIFYING A WILL.

Did you know that an application can be made to the Supreme Court to ‘rectify’ a will if it does not accurately reflect the ‘testamentary intentions’ of the deceased person? The purpose is to effectively amend the wording of the will so as to give proper expression to the intentions of the deceased. An application of this kind must be made within six months of the grant of probate or letters of administration (unless the Court consents to a longer period). Recently, such an application was made when the deceased person – who...

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WHY DOES A WILL HAVE TO BE IN WRITING AND WITNESSED?

If the law requires that a legal will is to be signed by the testator in front of witnesses, what happens if the person dies after the will is written but before it is signed? It is in section 8 of the Wills Act that the requirements of a valid will are set out. That section states that to be a legal will it must: a) be signed by the testator (or by some other person in the testator’s presence     and by their direction); and b) appear that the testator intended by the signature to give effect to the will;     and c) the signature...

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