DRAFTING A WILL
As a general rule, any person who has reached the age of 18 and is of sound mind may draw up a valid will. For the drafting of a will, strict compliance with a specific legal form is required. On the one hand, a valid will must be in writing and must clearly express the intention of the testator. On the other hand, it must be signed at the end by the testator in the presence of at least two witnesses, who, by their own signatures, confirm the signing of the will by the testator as well as by both of them. It is of critical importance that the will is signed by the testator and the witnesses simultaneously and in each other's presence.
Furthermore, if the will consists of more than one sheet of paper, a necessary requirement for its validity is that each page is initialed by both the testator and the witnesses. The issue of complying with the form prescribed by law is of particular importance, as any omission cannot validate the will, even if oral testimony is presented before a Court. As regards the selection of witnesses, it is sufficient that they have legal capacity and that they are not included in the bequest, nor their children or spouses.
DISPOSABLE PORTION OF THE ESTATE
At this stage, it is appropriate to explain the distinction between the statutory portion and the disposable portion. The statutory portion refers to the part of the estate which cannot be disposed of by will. In other words, it is the portion of the estate that will be distributed as provided by law, regardless of the wishes of the testator upon execution of the will. By contrast, the disposable portion is the part which may be freely distributed by will.
It is therefore understood that the right to dispose of one's estate by will is not absolute. Absolute freedom of disposition over the entire estate exists only for persons who die unmarried, without children, and whose parents have predeceased them. Consequently, a testator who is married but childless may dispose only of one half (½) of their estate as they wish, since the other half will, by law, be inherited by their spouse under the statutory portion.
A greater limitation exists where, at the time of death, the testator leaves behind a child or a descendant of a child. In such cases, the testator may not dispose by will of more than one quarter (¼) of the total estate, as the remaining three quarters (¾) will be distributed to the legal heirs under the statutory portion. This legislative provision aims to protect and safeguard the inheritance rights of close relatives.
WHO MAY BE BENEFICIARIES
Bequests may be made in favour of both natural and legal persons, provided that they exist at the time of the testator's death. Therefore, such bequests are valid and enforceable, even if made subject to conditions, provided that the condition is not illegal, immoral, impossible to perform, or does not excessively restrict the free will of the beneficiary.
A conditional bequest may arise either by imposing conditions on the beneficiaries or by making the bequest dependent on their existence. For example, in the first case, a bequest of property may be made on the condition that it will not be sold for one year. In the second case, a bequest may involve leaving the entire estate to a spouse, subject to the condition that if the spouse is not alive at the time of the testator's death, the estate will pass to an organisation.
However, particular interest arises in relation to restrictions on bequests to religious organisations. According to the Law, a testator who is not Muslim and has relatives up to the third degree alive cannot make such a bequest, and if they do, it is void. An exception applies to bequests made at least three months before the testator's death. Therefore, a non-Muslim testator who wishes to leave property to a religious institution, while having at least one relative up to the third degree alive, must ensure that the will is made at least three months prior to their death for it to be valid and enforceable.
REVOCATION
In order for a will to be revoked, the Law expressly provides for specific cases. What is common to all cases is the requirement of intention on the part of the testator.
Firstly, a will may be revoked by drafting a subsequent will, in which the testator expressly revokes the previous one. Secondly, lawful revocation may occur through the drafting of a new incompatible will. The term "incompatible" means that the new will differs in content from the previous one and reflects a different intention of the testator.
Thirdly, a will is considered revoked if it is destroyed by the testator or by a person authorised by them, always in their presence. Finally, where the testator was unmarried and without children at the time of drafting the will and subsequently marries or has children, the Law, aiming to protect the inheritance rights of close relatives, considers the will to be revoked.
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