Property can be inherited by a beneficiary when he/she has been included in the will. However, this simple process can be made complex in many circumstances such as when the person dies intestate or if the person is ineligible to make a will because he/she is a minor.
At Falzon Legal, we know how difficult such circumstances can be, and our lawyers can advise you on the steps to take.
Who can make a will?
Anyone over the age of 18 years can make a will, and it is important that everyone has a will. If you are under 18 (a minor under the law), you cannot make a will as it will be invalid unless it is in contemplation of marriage.
Furthermore, to make a will, you must have testamentary capacity. This simply means that you must be of sound mind, good memory and capable of understanding the implication of your decision when making the will. When making a will, the property will be disposed of, so it is essential that a person making a will should know what property he/she is disposing and to whom it is disposed of to.
Old or Sick
In the case of old or sick people, a will can be contested on these grounds if it is believed that the will-maker does not have the capacity to make a will. In most instances, this occurs when the person is frail and very old. It is advisable to make a will when you are very young to prevent issues of capacity arising, and if this occurs, a certificate showing your evidence of testamentary capacity can be obtained from your doctor.
For people who have intellectual disability, testamentary capacity could also pose a challenge.
Power of the Court
In situations where there is a no testamentary capacity, the court has authority under the Succession Act 2006 to make a will by virtue of s.18 to s.26. However, this can only be done when a person applies to the court for the will to be made, altered or revoked (fully or partially) for lack of capacity for being a minor (under 18), intellectual disability, sickness/old age or for other reasons for a lack of capacity.
It is imperative that the person on behalf of whom the application is made is alive when the order is made, and the executed will has to be deposited with the Registrar.
Who can inherit?
In a will, you can only inherit property once you have been included as one of the beneficiaries. However, it may pose problems when there is no will.
If there is no will?
In many situations, when someone die, there’s usually no will and the person is presumed to have died intestate. If this occurs, the estate does not automatically pass to the state, but the Succession Act 2006 sets out the order in which relatives will inherit the estate. However, in situations where relatives are not eligible to inherit the estate, the property will pass to the state.
It is crucial that a will be made before death so that the wishes of the benefactor will be satisfied, rather than having the rules of intestacy to apply.
Procedure when there is no will
In the advent of the intestacy rule applying, there is a procedure that must be followed. It is vital before this process begins, there is an extensive search for a will, and if it is not found, then there is a presumption that the person died intestate.
- Applying for a grant of Letters of Administration
This is a court order allowing an estate to be administered when there is no will, or when there is no executor appointed by the will. A letter of administration can be applied for by an eligible relative only when there is no evidence of a will.
- Affidavit of applicant for administration
An affidavit also has to be filed when the application for the Letter of Administration is made. The affidavit must identify the eligible relatives of the deceased, and they must also provide supporting documents like marriage and death certificates. Furthermore, since a search has been conducted to show that there is no will, it must be stated in the affidavit as well. The assets of the deceased also have to be listed, and the death certificate must be attached and a publication of a notice of the intended application should be published online.
- Administration bonds
Before December 2001, an applicant needed to lodge an administration bond. This was done to secure the entitlement of the next of kin and people who were not a party to the application or did not consent to the application. However, since December 2001, a beneficiary who is an adult and not a party to the application for administration only has to be served with a notice of such application. A bond may be required in some instances, like securing the entitlements of a beneficiary who’s a minor.