Have I the right to make a Will as I please?

Question: If I make a Will have I the right to make the Will as I please?  Are there any restrictions on what I can do?

Answer: In general terms you can dispose of your property as you see fit except for the following.

Firstly if you are married, a surviving spouse is legally entitled to a specific share of your Estate – this is called the legal right share and is provided for by the Succession Act of 1965.  If you have no children, the surviving spouse is entitled to a one-half share and if you have children the surviving spouse is entitled to a one-third share.  The Executor is obliged to notify a surviving spouse of this right.

Secondly while children are not entitled as a right to a specified share in a deceased parent’s Estate, the Succession Act provides for a child to make a claim if he / she feels that they have not been provided for adequately.  A child has to prove that the parent failed in his / her moral duty to make proper provision for that child in accordance with his or her means whether by Will or otherwise.  Each case is decided on its own merits and the court will look at the situation from the point of view of a prudent and just parent. 

It should be noted that the legal right share of the surviving spouse or bequest to a spouse cannot be set aside in order to give a child a share.

Finally it should also be noted that property which is registered in joint names as joint tenants passes automatically to the survivor and therefore is not affected by the terms of any Will.

The information contained in this article is for general information purposes only and does not constitute legal or other professional advice.  Specific legal advice should be sought on any particular matter.

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