Making Your Last Will and Testament | You and the Law

By Dr. William Para Riviere

July 15, 2013

If the property left on your death is to pass to persons for whom you left it in your Last Will and Testament, that is to say, to your beneficiaries, your Will must be valid. It must be made, in other words, strictly in accordance with the law. In Dominica the laws which govern the making of Wills are the Wills Act and the Common Law. The common law consists of rulings and decisions handed down in cases heard in Courts in England and Wales and other countries of the British Commonwealth, including Dominica.

If your Will has not been made in accordance with the law, it will be treated by the Courts as invalid, that is to say, as if it was not made at all. You will be treated as having died intestate, and any and all property left on your death will be distributed according to the Intestates Estates' Act.

A valid Will consist of three (3) ingredients. Firstly, the person making the Will (called the testator, if male, or testatrix, if female) must have a right under the law to make a Will. Almost everybody has this right, but there are two (2) exceptions: one, persons who are not able to understand what it means to make a Will; and two, minors, that is to say, persons under the age of eighteen (18) years other than sailors and members of the armed forces on active duty.

The second ingredient is that the testator or testatrix must have intended to make the particular document his or her last Will. The person, that is to say, must know what is written in the particular document and must approve of all that is written therein. If the contents of a Will are to be taken to have been the intention of its maker, the maker must have made the Will freely, without any outside pressure, and without any undue influence.

In effect, a Will made by a person at a moment when he or she was not able to understand the significance of what he or she was doing is a Will that was not intended by its maker and is, therefore, invalid. Thus a Will made by a person who was senile at the time is not valid. Nor is a Will made by a man in an obvious state of drunkenness, or by a loving wife threatened with divorce by her husband or, by a person unduly influenced by another. In fact, in an English case where a nurse made a Will for a sick testator, the Court presumed she had used undue influence, and the Will was declared to be invalid. Needless to say, where it can be shown that a Will has been made fraudulently, that Will will be treated as invalid. Thus, where it was discovered that Tricky made a Will in which he leaves Ma Jack's property to himself, having paid Worthless and Timely to sign as witnesses, the Court had little difficulty in declaring the document to be invalid.

The third ingredient of a valid Will concerns what under the law is called "formalities", that is to say, how the Will should be made. One formality is that a Will must be made in writing. It is not required that it be printed or type-written; it is sufficient if it is written by hand, or in pencil or in ink. It should be noted, however, that pencil writing fades with time and that a document written in ink may be difficult to read if left in a damp location for a long period. So, the law notwithstanding, you are strongly advised against making hand-written Wills, whenever possible.

A Will, to be valid, must also be signed either by its maker, or by a person at the direction of the maker. A signature may be in the name of the person signing or by his or her mark. The mark most commonly made is an "X". As a general rule, this signature should be made at the foot or end of the Will, following statements as to how the property of the testator or testatrix is to be distributed. This means that, if a gift to a beneficiary is written below the signature, the Courts may hold that it was not the intention of the testator or testatrix to dispose of his or her property in that way, and the gift would most probably be treated as invalid and would not pass to the named beneficiary. However, there are exceptions to this general rule. For example, in a case where there was no space at the foot or end of the Will, a signature in the margin was accepted as valid. In other cases where statements disposing of property have been written in below the signature, and an arrow or some such sign has indicated that these statements should have appeared above the signature, the dispositions or gifts have been held to have been validly made.

Another formality required by the law is that a Will must be witnessed by at least two (2) persons. These persons are said in the language of the law to attest and subscribe the Will. This may be done in one of two ways. Either, the testator or testatrix makes his or her signature in the presence of the two witnesses together, and then each witness (whether or not the other witness is present) signs his or her name in the presence of the testator or testatrix. Or, the testator or testatrix, having beforehand made his or her signature, acknowledges this signature in the presence of the two witnesses, and then each witness signs his or her name in the presence of the testator or testatrix. Further, where the maker's signature is by mark rather than by name, the two (2) witnesses must swear to the fact that the mark represents the maker's signature. Witnesses may attest anywhere on a Will.

Anybody who can see and is of sound mind has the legal right to witness the execution of a Will. Even a person under eighteen (18) years may witness a Will, provided he or she understands what is involved in the process and the consequences that follow. But the courts will hold a Will to be invalid because one of two (2) witnesses did not have the legal right to act as a witness. Interestingly, a witness is not required to know the contents of a Will or what is being attested to in a Will. That is so because his or her function is to see the testator or testatrix and the other witness or witnesses sign their name or make their mark.

It should be noted, however, that a gift left in a Will to a person who witnesses that Will or to the spouse of that person is invalid. The effect of this is that neither witness nor spouse has legal claim to that gift. That is to say, if you wish to leave property for someone or his or her spouse in your Will, he or she should not witness that Will. An exception to this general rule occurs where the Will was executed prior to the marriage of the witness; in that case the spouse will have a legal claim to the gift. Another exception is where the gift is made to the witness or spouse as a trustee of the Estate of the Deceased, rather than as a beneficiary in the strict sense of the word.

There is no requirement in law to name a person or persons to take charge of burying a testator or testatrix, or paying his or her debts, or proving the Will before the Courts and then distributing the gifts according to the terms of the Will. Such a person is called an Executor, if male, and an Executrix, if female. But, where the duties assigned to a particular person or persons by the testator suggests that the testator wished that person or persons to conduct his affairs after death, the Court may infer that the Deceased wished such person or persons to fulfil that role. Almost anyone, including an alien, may legally be appointed Executor or Executrix. But a person under eighteen (18) years cannot. An Executor or Executrix may attest and subscribe a Will.

Someone may make many Wills in his or her lifetime. But a Will made in 1990 will not automatically revoke and render invalid one made in 1970. A later Will revokes an earlier Will only where there is clear intention in the later Will to revoke the earlier. That is why the first clause of modern-day Wills usually states that this is the Last Will and Testament of the Testator or Testatrix and it revokes all other Wills and Testamentary dispositions, that is to say, ways other than by Wills in which an owner of property wishes to pass such property upon his or her death.

Lastly, but most importantly, as a general rule every Will made by a man or woman is revoked by his or her marriage.