1. Some free Will offers are only effective if you nominate a certain company or organisation as executor of that Will. This effectively gives the company the right to undertake any work involved in the administration of your estate. Make sure you fully understand the fees that will be charged in this event. The Trustee companies typically make these deceptive offers.
2. A stepchild is not legally considered a child of the deceased under the intestacy rules and cannot benefit in an estate if there is no Will. Any claim would have to be made under the Family Provisions Act.
3. The words ‘issue’ or ‘children’ in a Will include nuptial and ex-nuptial children. If a person wants to exclude ex-nuptial children this must be explicitly stated by naming only the ex-nuptial children.
4. Adopted children are treated as biological children for the purpose of inheritance.
5. The ‘term’ sister’ or ‘brother’ generally includes half sisters and brothers but if there is no Will, then half siblings will only inherit if there are no full sisters or brothers of the deceased.
6. A document claiming to contain a deceased person’s wishes, even if it is not validly executed, can be considered to be their Will or an amendment to or a revocation of their Will if the Court is satisfied. Therefore anything signed by the deceased is a testamentary disposition, if the Court is satisfied.
7. A Will may be rendered invalid by marriage, divorce or by making a new Will.
8. A person must be over 18 years of age to make a Will unless: they are or have been married; they have been granted leave to make a Will by the Court; or the Will is made in contemplation of a marriage which does take place.
9. Wills can be written in any language but a certified translation is required when the Will maker dies if an application for a grant of probate is required.
10. A parent can nominate someone in their Will to be guardian of their infant children; however, the surviving parent will generally assume this responsibility. If there is disagreement, the Court will make an appointment and whatever you write in your Will may be taken into consideration by the Court.
11. A Will is invalid if it has been obtained by actual force or by threats but appeals made to the sentiments of affection, gratitude, pity or ties of kindred are perfectly legitimate.
12. Mutual Wills are where each Will maker leaves his or her estate to the other and on the death of the survivor, to an agreed third person. Mutual Wills must include a binding agreement that neither party will revoke. This means that while both parties are alive, notice must be given of intended revocation but after death of one of the parties, the agreement not to revoke becomes binding.