Wills and living wills

What is a will?

A will is a legal document written during your lifetime that directs the distribution of your property after your death.A will might also address matters of importance such as burial instructions or the guardianship of surviving minor children. Without a valid will, in most countries, you have no legal say over the distribution of your property after your death.

Wills are important for every adult, whether living with HIV, with another disease or even if perfectly healthy, since one never knows when death may come by accident or an unforeseen health problem.

What if I don't have a will?

Without a will, in most countries, your property will be distributed under strict, legal guidelines. Tradition and customary law may also apply. But in any case, without a binding will, no thought needs to be given to your personal wishes or desires. Only by carefully writing your will, with the help of legal authorities in your country, can you be more assured that your personal wishes and desires will be respected.

Why do I need a will?

A will can help you to do many things. The list below is not comprehensive and all items may not apply in all countries. You should check with local legal authorities to see what benefits you may have in your country. A will can help to:

  • Direct the distribution of your property after your death. This includes money that you have saved, your house and land if you own such property, valued personal effects such as jewellery and family treasures.
  • Provide for the most effective and efficient transfer of your property to your heirs.
  • Reduce taxes associated with transfer of properties.
  • Designate a guardian for your minor children in the case that your spouse is unable to do so or if you are not married. The guardian will be responsible for the children's physical care and for managing any money or property left to the children until they reach adulthood.
  • Protect women. In some countries, women have fewer traditional and/or legal inheritance rights than men. And they may have fewer rights to designate what they want done with their property or concerning guardianship of their children. By checking with legal authorities, you may be able to build safeguards into your will to overcome all or some of these inequities.
  • Designate someone you trust to supervise the proper settlement of your estate.
  • Reduce indecision, anxiety and family conflict at the time of your death.
  • Establish a financial plan for the continuing support of loved ones.
  • Help others by making a bequest to your favourite charity, school or religious institution.
  • Describe details about your preferences for a funeral, burial and/or cremation.

How do I start the process?

The first thing to do is to think about what you would like to happen with respect to the above questions. Write down your thoughts and maybe even discuss them with those who may be involved, such as your family members. Let them know your preferences and ask them if they will help to make sure that these preferences are respected after your death.

You will also need to find out what legal arrangements are required in your country to make sure that your will is respected. In most countries, this means having a written document that is recognised by the law as having been drawn up by you when you are of sound mind. Customary law may also need to be taken into consideration when you draw up your will. A few basic requirements in most countries for a will to be valid:

  • The will must be in written form.
  • It must be signed by the person making the will.
  • It must be signed by competent witnesses.
  • The will maker must be mentally competent and not acting under duress or under the controlling influence of another person.

Are wills only for the rich?

No! Whether your estate (the total of everything you own) is large or small, it is never insignificant. Your estate is the material representation of your life's work. What you want done with it expresses your love, concerns and values.

Once written, does my will remain unchanged forever?

Although your will is written during your lifetime, it is not put into effect until the time of your death. You can and should update your will when changes in your life situation occur, whether related to changes in your property, changes related to how you want your property distributed changes in who you want to take care of your minor children or even changes related to arrangements for your funeral, burial or cremation.

Where should I keep my will?

Check with legal authorities in your country. In most countries, your original will needs to be placed in a secure place. In some countries, this may be in a bank or other place with a secure and fire-proof safe. Be sure to inform those who are responsible to carry out your wishes where your will is located and how to access it.

What about a "living will"?

Through advances in medicine, many people who would have died naturally in the past are now kept alive by special treatments and care. Often, the person may desire such treatment because it can potentially lead to a restoration of health. At other times, such treatment may be not be desired by the person who may see such treatment only as prolonging the process of dying rather than being restored to an acceptable quality of life.

In most countries, under law and/or tradition, the individual has the personal right to decide whether to start, continue or end medical treatments. As long as a person is mentally competent, he or she can be consulted about what treatments are wanted, but when a person has lost the capacity to communicate, the situation is different.

Only by carefully writing your will, with the help of legal authorities in your country, can you be more assured that your personal wishes and desires will be respected.

In some countries, you can prepare a document known as a "living will" to have your wishes about medical treatment respected. If you do not have a living will, treatment to maintain your life will be decided by others, whether by medical authorities, family members or legal authorities. If there are conditions under which you would not want treatment, it is important that you communicate your wishes while you are able to do so. Your wishes can be documented in a living will which in many countries will ensure that your preferences are respected. You will need to consult a legal authority in your country to prepare a valid legal will with your health care preferences.