Sunday, 16 December 2018

HOW TO KEEP A WILL SAFE

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The next important step after making a will is its safe-keeping. The Will must be kept where it would not be tampered with by unscrupulous people and still readily available after the death of the testator. The purpose of making a Will is defeated if at the death of the testator, the Will cannot be found or has been altered by someone other than the testator. A testator whose will is never found after his death is no better than the person who died without making a Will.

Some testators keep copies of their Wills in their homes or offices, while others keep copies with the lawyers who prepared them or with trusted friends. There are risks associated with keeping Wills at these places and with these people.

However, a place generally agreed as one of the best places to keep a Will is the Probate Registry of a High Court. The Law permits living persons to deposit their Wills at the Probate Registry of a High Court for safe-keeping.

The Will may be deposited at the Probate Registry by the lawyer that prepared the Will or by the testator personally. The following are required when depositing a Will:   
  1. A copy of the Will;
  2. A big envelope to contain the Will;
  3. Two (2) passport photographs of the Testator;
  4. A fee for the deposit of the Will[1].
A properly executed Will would be registered, waxed and sealed inside the envelope then sent to the Registry’s Strong Room for safe-keeping.
Once a Will is deposited at the Probate Registry of a High Court, it can only be brought out of the Strong Room in the following instances:
  1. When the Testator wants to amend his Will or replace his old Will with a new one. When a testator seeks to amend or change his Will entirely, he could bring a Codicil which will serve as an annexure to the existing Will, or the old Will would be withdrawn and replaced with the new one. This would be reflected in the record of the probate division.
  2. When the Executors or an Executor has predeceased the testator; in which case it will be necessary to appoint new Executors.
  3. When the Executor appointed in the Will declines to act upon being informed by the Testator that he was appointed an Executor in his Will; it will be necessary to appoint new Executors in the Will.
When the testator dies. A Will only takes effect at the death of the testator, thus, when the testator dies, his lawyer or family members can make a formal application through a letter addressed to the Chief Registrar for the formal reading of the testator’s Will. The Chief Registrar would then fix a date for the reading of the Will. On the day the Will is to be read, the Will must be presented by the Probate Registry to the family to confirm the wax and seal on the envelope remains unbroken. A situation where it is discovered that the seal of a Will’s envelope has been broken or that the Will was not sealed in the first place can be grounds for litigation against the Probate Registry as the integrity of the Will has been compromised.
 
Where there is no issue relating to the envelopes seal and the Will has been read to the family members present, certified copies of the Will may be applied for and given to family members and beneficiaries under the Will. The original copy of the Will deposited by the testator in his lifetime is returned to the Registry’s strong room.

A few organisations have policies mandating their employees to deposit copies of their Wills at the Probate Registry, failure of which would deprive such an employee’s dependents and family of the death benefits of the deceased at his death.

Please note that the procedure for depositing a Will at the Probate Registry and the procedure for reading a will so deposited at the death of the testator have been detailed to illustrate that the Integrity of the contents of a Will and the production of a testator’s Will at his death is more guaranteed when deposited at the Probate Registry than when kept with individuals or in an office or at home.

The procedures which a testator must comply with before his will is accepted and kept at the probate division of the High Court can also operate in favour of the Will, should the validity of the contents of the Will be contested by anyone on the ground that the testator lacked a sound mind when making the Will.

The above and many more are reasons that it is desirable for a testator to duly deposit a copy of his Will at the probate registry to avoid issues that could arise after his death 

[1] The amount payable for the deposit of the Will varies from State to State, however, it is usually a token.

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