(Hons), BVC, LL.M, P.C.H.E
WILLS vary in length and content depending on a number of issues including: how much property the testator has to distribute; the number of beneficiaries and how many optional clauses he or she had included in this legal document. In this article, I will look briefly at the likely clauses in a notarial will.
On the cover of the will is the proclamation that this is the last will and testament, the full name of the testator and date that the will was signed. It is not crucial to identify the deed being signed and executed; however, it is a useful exercise in clarity for the testator and later the beneficiaries. What follows would be confidential; the notaries who signed the notarial form of a will cannot disclose the contents of the will to anyone, even a family member or close friend of the testator. However, the testator can relate its contents if he or she wishes to do so.
The preface would once again state the date that the will was executed. It is the date that the testator and notaries signed the will in each other’s presence.
The full name of the executing notary, residential address and representations that the notary is a practising attorney in the island of Saint Lucia would follow. The second notary would either be mentioned as “colleague” or the full name and residential address would also be listed. The date that appears on the will is not necessarily the date that instructions were given by the testator to one of the notaries signing the will; in most cases this was done in a previous meeting between the testator and the executing notary.
The testator’s full name and residential address would follow and a statement that the testator is of ‘sound and disposing mind, memory and understanding’, which means the testator knows and understands the contents of the will, and has the legal capacity to make a will. It also makes another declaration that this is his or her last will and testament.
The first clause of the will is usually the revocation clause. It states that all previous wills or codicils are renounced and that the existing will is the true last will and testament. In England, if a testator is considering getting married shortly after executing the will, a declaration to that effect can be inserted after the revocation clause, so that the will would not be rendered invalid upon the change in marital status. In Saint Lucia, no such declaration would be entertained, if the testator marries after making his or her will, the entire will is null and void.
The second clause could name the executor(s) of the testator’s will. It is sensible to have at least two executors because if one of the executors pre-deceased the testator, the will would not need to be altered, the surviving executor can continue on with his or her duties. The executor(s) can also be a beneficiary of the will, however, would not in these circumstances be able to be a witness of the will. Again, this would invalidate the will under the current local laws.
The third clause could be an expression of what the testator would like to happen to his or her body after his or her death. The testator may have strong views on the disposal of his or her body, for example, he or she may want to be cremated with specific instructions on what happens to the ashes; or buried in a particular cemetery and/ or a Christian funeral service. Generally, these wishes are not legally enforceable, especially if the estate does not have enough funds to carry out the testator’s wishes. It is completely at the discretion of the executors, family or friends of the testator, whoever happens to be responsible for funeral arrangements to make the final decision. Further, there is the possibility that the testator’s will may not be read until after the funeral. However, it is likely that the testator would have made his or her views on the subject known in his or her lifetime.
The next few clauses would describe in detail who the beneficiaries of the will were and what movable or immovable property and funds they will be receiving after the will has been probated. The full names, current addresses and relation to the testator of the beneficiaries should be also listed.
Once the will has been completed, it will be read by one of the notaries in the presence of the testator and the other notary (or two witnesses). The notary will ask the testator whether he or she understands the contents of the will. There is a clause to that effect followed by the ‘whereof record’, and finally the testator, then the notaries would sign the will at the end of the document in the presence of each other.
It is advisable to do a notarial will: it is more likely to be well written, well structured, and unambiguous. The notary knows the importance of choosing the right words when drafting the will. The last wishes of the testator would have been recorded in accordance to the law. Further, the advice given to the testator to ensure that the will is completed with clear instructions is invaluable. It simplifies the task for the executor(s) after the testator’s death.
Ms. Trudy O. Glasgow is a practising attorney at the law firm Trudy O. Glasgow & Associates and a court-appointed mediator in Saint Lucia (and has also taught law at University level in the UK)*
This column is for general use only, for advice specifically for your case, please see your lawyer.
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