Questions to be put to an intending testator to obtain necessary information
Such questions, of course, will depend on the circumstances. This form is inserted as a reminder to drafters of wills of some of the points to which an intending testator’s attention should be directed.
After obtaining his personal details i.e. name, identity number, address and telephone numbers:
1 Whether he is married and if so in or out of community of property.
2 Whether he has children and if so, their ages.
3 What is the approximate value of his estate and of what does it consist. (This is then an opportunity to assist the testator with estate planning.)
4 Whether he wishes to benefit:
4.1 Any relatives or friends besides his wife and children;
4.2 any employees or other people;
4.3 any charity or other similar institution.
5 If the value of the estate is considerable, whether creating a trust would be beneficial.
6 If there are minor beneficiaries, point out the advantages of a trust.
7 Whom he wishes to appoint as executors and/or trustees.
8 Whether he requires his executors and/or trustees to furnish security.
9 If children are the proposed beneficiaries, whether he wishes them to benefit equally.
10 Whether he wants any delay in the vesting of an inheritance to any of his beneficiaries.
11 If a beneficiary should predecease him, who is to be the alternative beneficiary.
12 Whether he has given or is likely to give any child a gift of some substance and if so whether he requires such child to collate the gift.
13 Whether he wishes to bequeath as a specific legacy any asset to a particular person.
14 Whether he has shares in public companies and if so whether he wishes them to be sold or whether he wishes to bequeath them or any of them to a particular person.
15 If he has immovable property, whether there are any mortgage bonds registered against property and if so how the mortgage bonds are to be settled.
16 If any portion of the estate is to be held in trust, what powers are to be given to the trustees and how must the trustees deal with income or capital. (The intending testator should be advised as to the tax implications of a trust.)
17 If a trust is to be created and the trustees are to be given powers of investment, what limitation, if any, does the testator wish to impose as to the nature of investments. (The widest powers should normally be granted.)
18 If any portion of the estate is bequeathed to a female, does the testator wish such portion to be free of the control of the husband of such beneficiary.
19 With regard to any cash legacies, whether he wishes any legacy to be given as a prelegacy. (This is particularly important if the amount of all the legacies are such that there may be no residue in the estate and there may have to be an abatement of legacies.)
20 Whether in the case of any legacy he wishes any conditions to be attached and, if so, the various kinds of conditions should be explained to him.
21 Whether he wishes any conditions to be attached to the residuary heir i.e. whether he wishes any portion of the estate to be subject to a usufruct or fideicommissum. (The differences and effects should be fully explained).
22 Whether in the case of a mutual will of spouses they wish to mass their entire estates or any portion thereof, the following should be explained to the intending testators:
22.1 The difference between massing and non-massing and particularly the effects of massing;
22.2 refusal by the survivor to adiate under the will and the effects thereof. This is particularly important when the parties are married in community of property. The parties should make provision in the will for alternative bequests in the case of the estate of the first dying if the survivor should refuse to adiate under the will;
22.3 that a mutual will is considered to be the two separate wills of the testators and either party could unilaterally revoke his or her portion of the will during the lifetime of the testators;
22.4 even if there is massing and the survivor does not accept any benefits under the joint will he or she could still revoke his or her portion.
23 Whether the testator wishes to give an annuity as a legacy to any person. (The income tax implications should be explained to him)