MCGREGOR
In last week's article, we explored the
importance of preparing a will. This week, we will examine what it means to have died intestate - that is, died without leaving a will.
THERE IS certainly no criminal sanction imposed for failure to prepare a will. So, if a person cannot be forced to prepare a will, why bother to do so? Here are a couple of reasons:
A deceased person will have no say in who shares in his or her estate and the proportions in which they should be shared. If he or she died leaving a will, he or she would have the power "to speak from the grave."
One will be able to appoint persons whom one trusts to carry out one's wishes and administer the estate by identifying beneficiaries and assets and paying his or her debts. These persons are called executors. Where a person has died intestate or no executor is named in a will, an application will have to be made for the court to appoint an administrator.
During your lifetime you are able to choose the persons on whom you wish to bestow your charity or share your wealth. This freedom can be maintained even after you have died, but only if you prepare a will. In the absence of a will, the Intestates' Estates and Property Charges Act ('the Act') and the court will determine how your assets are to be shared.
DIVORCE
Imagine a scenario where a husband left his wife and young children to be with another woman, but died without first obtaining a divorce. If he never prepared a will, the woman he chose to live with will have no share in his legacy, despite the fact that he might have intended to make provision for her. Instead, his wife (now widow), will be entitled to apply to the court to obtain a grant of Letters of Administration.
Only his widow and children (whether legitimate or illegitimate) will share in his estate. In fact, his widow will get the lion's share of his estate. The formula prescribed by the Act provides for the widow to receive:
all personal property, which includes any cars, jewellery, paintings, etc.;
10 per cent of the net value of his estate plus interest at 10 per cent per annum until the sum is paid; and one-half of the residue of his estate (two-thirds, if there is only one child).
The deceased's children will share one-half of the residue of his estate equally among them. If he had no children at all the widow, from whom he separated prior to his death, would stand to get everything.
This situation also holds true for a wife who dies intestate. Relatives such as parents, aunts, uncles, friends or any charity the deceased might have supported during his or her lifetime will not be entitled to share in any portion of the estate. However, the formula set out in the Act will produce different results depending on the categories of eligible relatives who are left behind.
For example, if the deceased died leaving children, but no "spouse", his or her parents would be entitled to share the estate with the children. The most adverse position would be one in which all the assets go to the Government (bona vacantia) because no eligible relatives can be identified.
It is important to note that this Act makes provision for a "spouse" to benefit on intestacy, not merely a surviving wife or husband. In other words, a single woman, who has lived with a single man for at least five years immediately preceding the man's death as if they were in law husband and wife, would stand in the same position as a surviving wife. Divorcees and widows will also fall into the definition of spouse.
The next time someone identifies a piece of land or some item of value, which he or she wants to be yours after he or she has died, find a diplomatic way of asking him or her to ensure that he has written this into a valid will.
Otherwise, the promise may mean absolutely nothing.
Sherry-Ann McGregor is an attorney-at-law and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.
