The importance of having a will and the consequences of not having one

by Jane Yelland, director, JFY Attorneys Inc.

In these strange and difficult times, there is a lot of uncertainty and instability. Many things are out of our control, and nobody quite knows how to move forward or what is going to happen next. In this context, wouldn’t it be nice to have the comfort of knowing that you and your family will be protected by having a valid will in place and knowing how to proceed and what to do? 

Before continuing with this article, it is important to bear in mind that this is a sensitive topic. Many people don’t want to talk about this and don’t take any steps towards creating a valid will and having one in place. However, just because this is a sensitive topic and not necessarily a subject you want to bring up or talk about around the table at a family dinner, it does not mean that it can simply be ignored or that it is not of paramount importance.     

It is necessary to discuss and understand two terms and concepts. There is intestate succession and testate succession.

When a person passes on and does not have a valid will, this is called intestate succession. This has its own rules and processes in place to distribute that person’s property and estate. When a person passes on with a valid will, this is called testate succession. The will dictates and prescribes what must happen and who must inherit which property.

There are really no advantages of passing on without a valid will. In fact, there are actually a few disadvantages, not only for the deceased but for the loved ones and family that are left behind as well.

Perhaps one of the biggest disadvantages of passing on without a valid will, is that it is the law and not the wishes of the deceased that dictates what must happen next and who must inherit which property. The law will decide who inherits from the deceased and how much that person must inherit, which may be completely contradictory to the wishes of the deceased. However, the wishes of the deceased mean very little in the eye of the law. On top of all of this, is that if there is no valid will and there is no one to inherit the property of the estate of the deceased, the property will accrue to the state / government.

Another big disadvantage is that of inheritance tax. Your family and loved ones will lose out on a lot of money that they could have otherwise kept, had provision been made for this in a valid will. However, without a valid will in place no provisions can be made to avoid the issue of inheritance tax.

Furthermore, no special provisions can be made or catered for if you do not have a valid will. There may be someone that you want remembered when you pass on. However, with no valid will in place there is no way to enforce any wishes of the deceased and it is up to the beneficiaries to decide whether they want to enforce any wishes of the deceased that they are aware of.

Lastly, when there is no valid will in place, this can cause a lot of tension and animosity between the family and loved ones of the deceased. There may be certain property, or a family heirloom, or a large amount of money that the family members will all want and will end up fighting about. I know of many instances like this where families have been torn apart due to disputes and fights regrading what the deceased would have wanted regarding who would inherit which property.

It is quite simple really. All the above disadvantages can be avoided and solved. The way in which this is done is by having a valid will in place.  

Just recently, I heard a story about a woman who had no spouse, no children, and no other family members that she was still in contact with. Her friends had become her family.  

In December 2020, she unexpectedly passed away and had no valid will in place and no executor to wind up her estate. Due to this, her car, her house and her other property has just been left to waste away. Nobody can do anything about this messy situation as there is no will and no executor and it is essentially up to the law to decide what happens now. What a sad story this was and how easy it would have been to have avoided this unsatisfactory situation.  

A will is quick and easy to draw up and creates certainty in an uncertain context and environment. Should you need any help or assistance or any further advice on wills and how to get started, please do not hesitate to contact JFY Attorneys Inc.

We at JFY Attorneys Inc will ensure that you and your family are well protected and that all your wishes are covered and catered for.