Years of experience in this country has made me realise that most persons who die do so without leaving a Will. Many people find this a depressing topic and would rather avoid it altogether, but writing a Will is important to make sure that the property you leave behind is divided the way you like.
In a previous article we looked at who was entitled to inherit your property if you died without leaving a Will. In another article we will look at what the role of the Administrator (appointed by the court) and an Executor (appointed by you) is when it comes to dividing up your Estate.
What is a Will?
A Will is a legal document that sets out your property or assets and says how you would like them divided on your death and to whom. Your Will may also include such things as appointing guardians for your children, your funeral and burial requests, donations to charities and setting up of trusts.
What should be included in your Will
You must appoint an executor. This is a person you have confidence in and trust and feel sure that they will carry your wishes out as you have outlined them in your Will. This person must be 21 years or over and can be either male or female. This a role undertaken by someone at no costs so it would be advisable to speak to this person you have in mind to ask them whether they would agree to be named your executor. If they agree it would be a good idea to also name an alternate or second person just in case the executor you have named either dies or becomes incapable or no longer wishes to be executor at the time of your death. The second named executor will automatically succeed them without the matter having to be decided by the court.
After you have decided who you want to be responsible for distributing your property you need to make a list of everything you own, such as land, house, furniture, vehicle, money in the Bank, jewellery etc. It is important to note that you can only distribute property that belongs to you personally.
Once you have made this list think of the person or persons you wish to leave all or part of your property to such as spouse, children, parents, grandchildren, nieces and nephews, other relatives or friends. You must state in the Will how much of your property you wish to leave for the people you have chosen.
Finally, at the time of making your Will there may be property you are not aware that you own or which you may come to own after you have made your Will. Rather than having to correct your Will every time you acquire some new property you should include what is called a residual clause. That is, a clause that says that any property which you may acquire after the making of the Will must go to a particular person or persons. This clause will ensure that every part of your Estate is dealt with at the time of your death.
What is not included in a Will
There are assets which you may own at the time of your death that cannot be dealt with under your Will. Some of these may be:
- Jointly held assets such as land held in joint proprietorship – in such a case, upon your death your interest in the land will be held by the surviving landowners. This information can be verified by you before your death or your executor on your death by having a look at the leasehold title at the Land Registry to determine whether that land would form part of your Estate.
- Custom Land – it has long been established that custom land will not form part of the Estate of a deceased person and can only be dealt with in accordance with custom.
- Life Insurance policy – usually such a policy will require you to name a beneficiary to that policy if you die and any pay-out on your death will be made to that person and not in accordance with your Will or the law.
- Pension payments – depending on the pension fund you belong to (in Vanuatu it would be VNPF) that fund may require you to name a beneficiary for any lump sum pay-outs upon your death. If this is the case then a payment will be made to that person and not in accordance with your Will or the law.
- Company shares – depending on the terms regarding the ownership of those shares and how they are to be distributed upon your death may determine whether they form part of your Estate or not.
How to write your Will
In most countries a Will is written by a lawyer but in Vanuatu there is no requirement under the law for a lawyer to prepare your Will. Having said that, you can seek legal advice on the writing of your Will and may even ask your lawyer to draft the Will so you can feel sure that all your legal bases are covered even though the lawyer does not sign it. But whether you write it or your lawyer does please ensure the following is done so that your Will is in compliance with the law.
The law which governs the writing and validity of a Will in Vanuatu is the Wills Act, Chapter 55 of the Revised Laws of Vanuatu 2006 and provides as follows:
- The Will must be in writing, that is, either written in your own handwriting or typed. Your Will won’t be valid therefore if you digitally record your voice or your image.
- Your Will must be signed by you or if you cannot sign then your thumb print can be affixed at the foot of every page including the last page.
- You must have at least two (2) witnesses. You may have more than two but not less than two. One of your witnesses can be your lawyer.
- Your witnesses must sign at the foot of each page as well, including the last page and must also include their address or place of origin. Their signature must be placed next to yours.
- You and your witnesses must sign the Will at the same time, all in each other’s presence.
- Your witnesses do not need to know the content of the Will, only that they are aware that they are witnessing your Will.
About your witnesses
Your Witnesses’ must:
- Be 21 years or over.
- Be of sound mind, that is, not insane or suffering from a mental incapacity.
- Not knowingly be an heir under the Will.
- Be able to sign his/her name.
Important note: If you name someone as an heir in your Will and they are aware that they are an heir under your Will and that person signs as a Witness, your Will will still be valid but that person will lose any right to any property or anything under that Will.
Revoking your Will
If you wish to revoke a Will you have made simply destroying it or preparing a new Will will automatically revoke the previous Will.
Also, if you marry after having made a Will your marriage will automatically revoke your Will. This means you would have to make a new Will after you got married.
What to do with your Will after it is made
There is no point making a Will if after your death no one knows that you ever made a Will, meaning your wishes would never get carried out. To avoid this you can do one of two things:
- Put your Will in a safe place and either inform your Executor or other person you trust as to where the Will can be found upon your death or else provide them with a copy of the Will or do both; or
- You may send a copy of your Will to the Registrar of the Supreme Court or the District Commissioner in your area who will then forward it to the Registrar.
What happens after your death
Upon your death the District Commissioner (DC) in your area will contact the Registrar of the Supreme Court to find out if you deposited a Will with him and if you did then the Registrar will forward it the DC. If the Registrar has no Will the DC will enquire with your relatives and neighbours as to whether you left a Will.
If there is a Will then the DC will take possession of it and give 7 days’ notice to the person or persons named as Executors and any other persons interested in your Estate of the date and time the Will is to be read out in open court in the area where you had lived or had your permanent home.
Following the reading your executor will take this Will and begin the process of carrying out your wishes.
How the Executor does this and his responsibilities will be dealt with in another article.
Penalty for hiding a Will
Any person who hides a Will or fails to disclose the whereabouts of, or to hand over to a District Commissioner of the area, a Will of a deceased person shall be guilty of an offence and on conviction shall be liable to a fine of VT 20,000, or to a term of imprisonment not exceeding 6 months, or to both such fine and imprisonment.
DISCLAIMER – This is a legal column to provide basic information on the law and court procedure. It is not to be used as a substitute for legal advice but to be used only as a starting point in understanding what you might need and what you might need to do.