A will is an expression of wishes of a person to bequeath his/her property to others after his/her death. Making the will lets the testator designate who to receive his/her property and possession when he/she passes away, which is vital and significant because no one can foresee what would happen for the rest of life. The will can also help to prevent unexpected disputes among relatives in the family regarding inheritance.
However, how to make the will legally and exactly express the wishes of the testator? The following significant factors should be taken into account:
- Who can make the will?
The will expresses the wishes of the testator, so determining who can become a testator depends on various factors. Not anyone can make the will.
Age is the first factor to determine whether such a person can make the will or not. The law bases on how old the testator is to allow such person to make the will by himself/herself or under the consent of his/her guardian.
Besides the age of the testator, other issues related to health, sanity and voluntarily entering into the will without being imposed on any fraud or duress of the testator also affect the validity of the will. If the testator makes the will without his/her sanity or under any fraud or duress, the will becomes invalid.
- Formality and contents of the will
The will must be made in writing. If it is not able to be made in writing, it may be made orally.
The will is a legal document which sets out the testator’s wishes. Hence, the will is only valid and comes into force if the contents of the will accurately reflect the testator’s wishes and wants. In the event of any fraud, threat or duress during making the will which misleads the wishes of the testator, the will becomes invalid and ceases to be enforced by law.
It is noteworthy that the testator can only make the will to divide properties under his/her possession.
If the property listed in the will is jointly owned by the testator and other organizational or individual owners, the will only comes into force over the part of the property under the testator’s possession. The rest of the property is possessed by the other joint owners regardless of the will. In other words, the will becomes partially invalid. Another typical example is marital property. If each spouse makes his/her own will over the marital property, the will’s contents regarding the part of marital property possessed by the other spouse become invalid.
Also, where the contents of the will are unclear and may be interpreted by the heirs in different ways, the heirs can request a court for settlement. Where any part of the contents of the will is not able to be interpreted but the remainder of the will is not affected, only that part which is not able to be interpreted shall not be legally effective. If it is the case, the relevant inheritance will be divided according to the law.
Witnesses to making the will means having someone witness the process of recording the wishes of the testator.
It is not a must to have a witness to making the will under every circumstance. The witness is required by law in the circumstance where the testator is not able to write the will by himself/herself (e.g. death emergencies).
There are restrictions on the eligibility of the witness to making the will to prevent anything causing inaccuracy of recording wishes of the testator. Because if the witness has any benefit or duty relating to inheritance, any opinion given by such witness is no longer objective and transparent. Or if the witness has any limitation to his/her civil act capacity, there is a limitation to his/her ability to express his/her opinion.
- Heirs notwithstanding contents of the will
The will presents the wishes and testaments of the testator. The testator, at his/her sole discretion, can bequeath his/her property to anyone. The testator’s selection is supported by law.
Nevertheless, in respect of morals and humanity, the law considers somebody as an heir of the testator regardless of his/her will. Because a person always has rights, obligations, and responsibilities accompanied by his/her social relations.
Parents, spouses, minor children and adult children who are incapable of working are the ones whose benefits are protected by law. Therefore, the testator has mandatory responsibilities towards such persons. Consequently, these persons will inherit a certain portion of the inheritance of the testator regardless of the will.