The notary : honouring testator’s wishes in will drafting

Abstract

A will holds a significant importance for a testator, representing one’s life values and serves as means of ensuring that one’s hard-earned assets are distributed according to his desires. Apart from being a means of distributing assets, a will reflects a person’s emotional investment accumulated throughout a lifetime, transpiring into the testator’s hopes and dreams for the designated beneficiaries, often being his closest people or loved ones. Therefore, a will serves as a mechanism whereby a testator passes on to the heirs and/or legatees one’s life’s legacy and earnings. This falls under the responsibility of the notary, possibly more than other contracts, to precisely and clearly draft the testator’s intentions and motives. Nevertheless, a carefully written will ensures that the testator’s last wishes are transcribed into legal provisions which would regulate the relative succession following the testator’s demise. In accurately drafting the testators’ intentions, notaries fulfil their responsibility, guaranteeing that the beneficiaries of a will receive inheritance as specifically ordered by the testator. This report aims to provide an analysis of the notary’s role in the drafting and publication of wills under Maltese law, examining their legal responsibilities to ascertain that the testators’ wishes are well accorded by the only method by which testators can regulate their dispositions of their estate; the will. It intends to explore the notary’s role as an advisor, focusing directly on the competence enjoyed by this legal profession to guide testators with adequate guidance in view of their final wishes. Additionally, various methods for a better estate disposal will be examined in this report, shedding light on the diverse applications which may be used by the notary to give better effect to the testators’ wishes, aiming at upholding such wishes from a legal perspective. Furthermore, this paper also seeks to analyse the notaries’ duties in the realm of will drafting and publishing, minimising ambiguity and potential future disputes between the family members and beneficiaries of the testator.