When someone dies: wills and estates

A valid will

A will made by a person under 21 years of age is not valid.

Wills Act s 4

A will is valid only if it is in writing, and signed at the foot or end by the person making it, or by someone else in their presence and by their direction. The signature must be made or acknowledged in the presence of 2 or more witnesses present at the same time, who then sign the will in the presence of the person making it. No form of attestation is necessary.

Wills Act s 6(1), (2)

A will is revoked by the marriage of the person who made it, with some exceptions for a will made under a power of appointment. A will made on or after 29 August 1938 and expressed to be made in contemplation of a marriage is not revoked by that marriage.

Wills Act s 13

Apart from marriage, a will can be revoked only by another will or codicil executed as the Act requires, by a writing that declares an intention to revoke it and is executed like a will, or by burning, tearing or otherwise destroying it with the intention of revoking it, by the person who made it or by someone in their presence and by their direction.

Wills Act s 15

If there is no will

The rules of distribution include these:

• A spouse, with no children or other descendants and no parent: the spouse takes the whole estate
• A spouse and descendants: the spouse takes half, and the rest is shared equally among the children, with the descendants of a child who has died taking that child's share
• A spouse and a parent or parents, but no descendants: the spouse takes half, and the parent or parents the other half
• No spouse or descendants: the parents take the estate in equal portions
• No spouse, descendants or parents: the brothers and sisters share it equally, with the children of a brother or sister who has died taking that share
• After them come the grandparents, then the uncles and aunts, and then the Government

Intestate Succession Act s 7

If someone leaves a will that disposes of only part of their property, the Act applies to the part the will does not dispose of, subject to what the will says.

Intestate Succession Act s 10

Movable property is distributed under the law of the country where the person was domiciled when they died. Immovable property is distributed under the Intestate Succession Act, wherever they were domiciled.

Intestate Succession Act s 4

Who administers the estate

When a person has died intestate, the court may grant letters of administration of the estate, and may grant them to the husband, the widow or next of kin, or any of them. When none of them applies, it may grant them to a creditor of the person who died.

Probate and Administration Act s 18

Where a will appoints no executor, or no executor survives, can act or takes out probate, the court may grant letters of administration with the will annexed to the person or persons it considers fittest to administer the estate.

Probate and Administration Act s 13(1)

Probate or letters of administration cannot be granted to more than 4 persons for the same property. If there is a minority, or a life interest arises under the will, letters of administration are granted to a trust corporation, alone or with an individual, or to at least 2 individuals.

Probate and Administration Act s 6(1), (2)

Anyone entitled to probate or letters of administration may renounce the right, orally at the hearing of a probate application or action, or in writing that is signed and attested as the Act requires.

Probate and Administration Act s 3