l---L---T1----+-T--2----T----3--T-+----4T---+---T5----+-T--6----T----7--T-R--r MATTERS TO CONSIDER IN MAKING A WILL This is a list of matters to be considered when making a will. This is in no way any attempt to be a complete list, but only selected items that may be of assistance. 1. Make sure that you fill in all the "BLANK"(s) when you do a will. 2. Make sure that your provisions do not contradict one another. 3. Is the testator (person making the will) of sound mind? 4. Is the testator subject to any restrictions on his testamentary powers, for example by contract, contract will, covenant, law of domicile, law of area where some assets are located? 5. Does the proposed executor know that he is to be the executor, and will and can he act? 6. Make sure that the witnesses to the will are not beneficiaries under the Will, and also that the witnesses are not married to beneficiaries under the will, ie: make sure that the witnesses are independent people who do not receive under the will. 7. Make sure that there is no confusion about what people are 'named' in the will. For example which wife, which child, etc. - especially where it could be more than one person. Is Robert Smith different from Bob Smith - father and son? 8. Are there life insurance policies that should also be considered before naming gifts. A life insurance policy is only part of the estate under the will if the policy names the estate. 9. What exactly do you mean by the word 'my children' or 'my issue'? Is it to include any adopted children, guardian children, non formally 'adopted' children, illegitimate children, children from previous marriages, children from previous marriages of your spouse, etc. 10. Are there any 'informal' instructions that the testator gave to anybody? 11. Are all the testator's assets easy to find upon his death. 12. A will can never cover all possible situations. 13. Perhaps you should also consider giving some gifts before you die, for at your death may not be the right time for a gift. For example, the person to whom you are giving may not need the money by that time. 14. You should also consider the tax implications before doing anything; and in addition after you have decided to do something in your will. As an example, your estate may consist of $50,000.00 cash and a business with a true value of $50,000.00. You may wish to treat your two children equally, and also you will not usually wish to divide up the business but keep it as it is. Thus you would probably give $50,000.00 cash to one child and the business to the other child. However, under certain tax laws, if you have taken depreciation on your business so that it is depreciated (for tax purposes) to $25,000.00 (even though its market value is $50,000.00) - then the child obtaining the business will be receiving less than half due to possible tax that that child might have to pay. 15. The witnesses to the will do not have a right to read the will, as they are only witnessing your signature and also your mental ability. 16. Terms in a will that are against general practice are not generally enforceable, for example exclusion by naming by racial origin, sex, etc. 17. Terms in a will that are not legal, for example theft, are not enforceable. 18. Terms in a will that are not usually enforceable, for example gambling debts, are not usually enforceable under the will. 19. It is possible to make conditional wills, but some care must be taken. The condition must be made before the gift, that is to say that you cannot first give a gift and then state conditions that it must be 'returned'. In other words it must be conditional and not a 'revocation.' 20. Both witnesses must be present at the same time and place and see the testator actually signing the will. 21. Do not alter the will, except with the same witnesses who must be again present at the same time. 22. Do not make more than one original will. 23. Destroy your old will once you have made a new will. 24. It is usually best to make a whole new will, rather than to make changes by way of a codicil. 25. Usually your will, made when you are single, is automatically revoked upon your marriage, except if the said will is stated to be made in contemplation of your marriage. 26. In some areas a totally handwritten will without witnesses is enforceable, but remember that the whole will must be hand written by the testator and also not any part typed. 27. Keep your wills simple, do not get 'cute'. 28. Do not use words of which you do not know the 'exact' meaning. 29. A gift (bequest) can only be given once. You cannot say "I give my car to Bob Smith, and when he dies to Charles Jones", or at least not in those words. 30. Make sure that you review your will on a regular time basis and also when something happens. Something happening such as: a death, a birth, substantial change in financial positions (yours and also the people to whom you are making gifts). 31. It is sometimes better to give in percentages of your estate, rather than exact amounts, as the amount in your estate at your death may be totally different from what you expect. 32. If you do not include a person in your will that might normally be expected to be included, explain in your will why you did not so do. For example if you have three brothers, and leave no money to one of your brothers - state that is because he has much more money than the other two brothers and does not need it, but that you care for him just as much as your other brothers. 33. If you give unequal monies, do as above. 34. It is best never to have joint executors, as (no matter what you feel) based upon experience it will not work out well. You should have executors listed to act one after the other. 35. You can have a person listed as consulting with your executor, but that the executor shall have the final say. 36. You should not normally leave younger children to older people to care for. For example you should not leave your parents as guardians but should leave your brother and his wife. Remember that you can state that your parents (both sets) can have an input, but that the guardian has the final say. 37. An executor should be somebody that you trust and that you know will do his best to do your wishes. Remember that he can hire any experts (lawyers, accountants, etc.) that he needs. 38. In most areas you cannot totally 'cut off' your spouse, you must make some reasonable provision for him or her. 39. You cannot give away that which you do not own, for example if the car is in the name of your wife you cannot give it (in your will) to somebody else. Also, this is also to be remembered in the holding or real property (land). 40. You can make 'suggestions' in your will, that are not absolute directions. For example: "I would hope that my children would use some of the money that they are given to advance the education of their children. 41. In most areas you cannot 'cut off' a person that you have supported over the years, for example a retarded nephew. 42. Make sure the witnesses and the testator sign on the last page of the will. 43. Make sure that the testator and the witnesses inital (or sign) each page of the will at the bottom of each page. 44. Please try and have part of the body of the will on the last (signing) page. That is to say try not to have only the signatures on the last page of the will. 45. Make sure that you date the will. ALL THE VERY BEST!