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What is a Will?
A Will is a legal document that
is created during an individual's
lifetime. It simply declares how that
individual intends for his estate (all
of his possessions) to be distributed
when he passes from this life. The Law
governing Wills in Trinidad and Tobago
is set out in the Wills and Probate Act
Chapter 9:03.
Requirements for a valid Will
(i) The maker of a Will (the testator)
must be 21 years old and over; (ii) The
Will must be in writing and has to be
signed by or on behalf of the testator,
in the presence of two witnesses that
are both present when he signs; (iii)
The witnesses must also sign the Will
in the presence of the testator and each
other (iv) The signature of the testator
must be placed at the foot or end of the
Will; (v) The witnesses of a Will cannot
be beneficiaries under that Will; (vi) A
Will ought to have a residuary clause to
take into account any assets that are not
specifically covered by the Will which
the testator may acquire between the
date of the Will and his death; (vii) The
testator must have the mental capacity
to make a Will. He or she must be
fully aware of the contents of the Will
and any gifts granted under same. The
testator must not be forced into making
a Will.
In the absence of a Will
Many people believe that in the event
anything happens to them their spouse
will receive all of their belongings.
This is a terrible myth. If an individual
dies without leaving a Will that person
is said to have died intestate. In such
a case, the Laws of Intestacy will
dictate the distribution of that person's
possessions. This distribution however
is highly unlikely to be in accordance
with the wishes of the deceased. The
Laws of Intestacy can be located in the
Administration of Estates Ordinance
Chapter 8:01, Part VIII of the
Succession Act and the Distribution of
Estates Act 2000.
The Laws of Intestacy
In reality according to the said Laws of
Intestacy, when a person dies without a
valid Will one half of their possessions
shall be given to their spouse and the
other half shall be divided amongst
their children.
When a person dies leaving a spouse
and no children, the entire estate shall
go to the spouse. If he dies leaving
children and no spouse the children
shall receive everything.
If a person dies without leaving behind
a spouse, but leaves a cohabitant, the
cohabitant shall benefit from the estate
and shall be treated as the intestate's
spouse for the purpose of distribution
of his assets. (A cohabitant as used here
refers to a person who was not married
to the intestate but who lived together
with him/her as his/her spouse for five
years or more immediately preceding
his/her death.)
If the deceased leaves behind a spouse
and a cohabitant, and at the time of
death was living apart from the spouse,
the cohabitant shall only be entitled to
that part of the estate that was acquired
during the time of cohabitation. This
is of course subject to the rights of the
surviving spouse and children.
Where an intestate leaves no spouse,
no cohabitant and no children then his
assets will go to his surviving parents.
Where he leaves no parents his estate
will go to his next of kin. If he dies
leaving no next of kin then his estate
will go to the State.
One of the disadvantages of not having
a Will therefore is the possibility of
having your assets distributed in a
way that is absolutely contrary to your
desires and perhaps in a manner that is
seen as unfair by your loved ones that
survive you.
Everyone should have a Will
Everyone therefore ought to make a
Will. A Will preserves your power to
direct how your assets will be divided
on your passing. Additionally, it
allows you to make financial provision
for your family and loved ones in a
manner that you prescribe.
Another advantage of making a Will
is being able to select an executor. An
executor is responsible for carrying
out the instructions of a deceased with
respect to the distribution of his assets,
in accordance with the deceased's
Will. Up to four (4) executors can be
named in a Will.
When you name an executor in
your Will you again preserve that
precious power of choice. You can
select a person that you believe to be
dependable and conscientious to be in
charge of the distribution of your assets.
Wills should be reviewed when there
are significant changes in the family,
like births, deaths, marriages, divorce
and so on. Kindly note that a Will is
automatically revoked by subsequent
marriage or destruction.
Probate
Generally, before a Will can begin to
legally operate, a court must find the
Will valid or probate the Will as we
say. When a person dies therefore,
no one can access his/her assets until
probate of the Will. An application for
Probate of a Will must be made by the
named executor.
If a person dies without a Will, an
application for Letters of Administration
must be made instead of a Probate
application. Where an individual
made a valid Will and has failed to
name an executor in such Will or
the named executor dies or does not
apply for Probate for whatever reason,
the beneficiaries named in the Will
can apply for a grant of Letters of
Administration with Will Annexed. If
the deceased has more than one Will,
the Will with the latest date is normally
seen as the valid one.
A Will is normally prepared by an
Attorney at Law. Probate applications
are also typically made by an Attorney
at Law. Where however the value of
the deceased's assets does not exceed
$4,800 an over the counter application
for probate at the Probate Registry
of the Supreme Court can be made
without an Attorney.
The information contained in this article is
provided for general informational purposes
only and is not intended to constitute
legal or other professional advice. You
should not take any actions based on the
information in this article without first
seeking professional advice with respect to
your particular circumstances.
Submitted by Arlene R. George
Attorney-at-Law LLB (Hons), LEC, LLM
George, Bassant & Associates
Phone: 798-2869
Email:
Website: trinidadcorporatelaw.com
Where there is a Will...
