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Death is a subject most of us prefer not to talk about — especially our own. For this reason the same holds true for wills. As an attorney though, it is my duty to advise you that making a will is something you ought to face up to — and in this article I am going to tell you why.
A will is a vital instrument in your trove of estate planning tools as you grapple with planning for your family after your death and estate planning is critical as you undertake new responsibilities, acquire new assets or your family structure changes.
In the absence of having a will, the law, by way of the Succession Act 1974, will decide what happens to your real and personal property (your “Estate”). In the event you do not wish your Estate passing to a particular family member (in default of a will) or you wish to ensure it passes to a person or persons, having a will in place will allow you to spell out exactly how your Estate will devolve.
The Wills Act 1988 (the “Act”) sets out all requirements that a will must comply with in order to be valid. Such requirements include the formalities to execute a will and the capacity to make a will (an individual must be at least eighteen years old and of sound disposing mind).
A will should be viewed as a fluid document so as circumstances in an individual’s life change the will should be drafted to take account of such changes or be modified to accommodate and reflect such changes. For example, a will can be drafted in a way to include future born children as beneficiaries of your Estate; this obviates the need to continuously amend your will with each birth.
One life-changing event that affects a will is marriage, either entering into it or having it dissolved by divorce or annulment.
If an individual makes a will when they are single, then subsequently marries later in life and does not amend their will, the will is automatically revoked by the marriage (section 14 (1) of the Act). Notably, however, there are situations wherein a marriage will not revoke a will. One example being if an individual makes a will in contemplation of an imminent marriage and that is stated in the will, naming the intended betrothed, those provisions will remain intact (14(3) of the Act).
Conversely, a divorce or an annulment will nullify any provisions in a will that may have pertained to your former spouse. If an individual has named a spouse as a beneficiary under their will and the marriage is dissolved by way of a decree of the Supreme Court, that former spouse is treated as having “died on the date on which the marriage is dissolved or annulled” (section 14A of the Act). Therefore any entitlement that the spouse would have received passes as if the former spouse had died on the date that marriage was formally dissolved.
Another consideration when making a will is that there is no requirement that the wills of a husband and a wife have to contain the same terms. Under Bermuda laws each individual has the freedom to decide to whom and how his or her Estate is to be disposed of at his or her death. It is critically important that your will reflect your wishes and not those of your spouse, or any other person, otherwise the will could be held to be invalid.
Finally, while it may be tempting to search for a template for a will on the internet or purchase a “will kit”, the best person to prepare your will is a qualified attorney. Having such an important document drafted by a qualified attorney may cost more at the outset but will potentially save you and your beneficiaries a great deal of frustration and expense in the long run.