A will, or a testament (Finnish: testamentti), is a legal document by which a person (the testator), declares how his or her property shall be distributed at death. It is said that the testament represents the last will of a person and it enters into effect when the person dies.
It is always recommendable to plan the will thoroughly. The testator needs to consider what he or she wants to achieve with the will; the main purpose of the will might, for example, be to transfer certain property to a specific person or to a particular charity, to secure the widow’s or widower’s position, to minimize inheritance tax or to grant a specific person the right to possess certain property. It is also possible to regulate other issues in the will, for example, who the will shall be execute by, who shall be responsible for the maintenance of certain property, who shall take care of the grave or one may expressly exclude the marital right of the beneficiary’s spouse to property mentioned in the will etc.
A common will in Finland is a so-called reciprocal ownership testament (Finnish: keskinäinen omistusoikeustestamentti) made between spouses, in which the spouses declare that the surviving spouse shall acquire full ownership of the first deceased spouse’s property, and after both spouses have deceased the property shall be distributed to the direct descendants (or other heirs) in accordance with the applicable provisions of the Finnish Code of Inheritance. A person may rule freely over his or her property in a will, but one has, however, to keep in mind that if the testator has direct descendants (Finnish: rintaperillinen), i.e. children or grand-children, their so-called lawful share of the estate of the decedent (Finnish: oikeus lakiosaan) may not be restricted. This means that the direct descendants are always entitled to their lawful share of the estate, which amounts to one half of the estate, even if the will would state otherwise. A direct descendant must, however, explicitly claim that he or she wants her lawful share.
Another commonly used will in Finland is a so-called testament granting a right of usufruct (Finnish: keskinäinen hallintaoikeustestamentti ), in which the spouses declare that the surviving spouse acquires a right to possess and use the property of the first deceased spouse, whereas the ownership to the property is directly transferred to the direct descendants (or other heirs). The surviving spouse is not obliged to pay inheritance tax on the right of usufruct. Moreover, the right of usufruct decreases the value of the inheritance, which means that the heirs end up paying less inheritance tax. Therefore, a testament granting a right of usufruct is often a good method to minimize inheritance tax. The holder of the usufruct, the usufructuary, is entitled to use and utilize the property rather freely; he or she may, for example, sell movable property and keep rental income received from property that has been rented. The person may, however, not alone sell or confer real property nor donate property, which is covered by the usufruct. A testament granting a right of usufruct to another person does not have to be reciprocal; it may also be made by just one person, and naturally also by other persons than spouses.
It is always recommendable for a person, who does not have close relatives alive, but, for example, good friends to whom he or she would like to leave his or her property, to draw up a will, as the entire estate will otherwise go to the state.
When drawing up a will in Finland it is essential to keep in mind that certain requirements as to form must be met. If the form requirements are lacking, the will may be declared invalid. The following are formal requirements of a will in Finland:
- The will must be made in writing
- The will must be signed by the testator in person
- The will must be witnessed by two uninterested persons
A person who has reached the age of eighteen years may draw up a will. An underage person may also make a will if he or she is or has been married. A person who has turned fifteen may make a will with regard to property that he or she is entitled to administer. Further, it is generally required that the testator has a sufficient understanding of the meaning and implications of drawing up a will.
The witnesses must be aware that the document they are witnessing is a testament. They must in other words be informed that it is a will they are about to witness, but they do not need to know further details on the actual content of the will. Both witnesses must be simultaneously present when the testator signs the will (or acknowledges his or her signature thereon) and after the testator has signed the will, these shall attest the will with their signatures. The witnesses shall further note their occupations and places of residence next to their signatures, as well as note the place and time of the attestation. Moreover, the witnesses must be uninterested; for example, a spouse, close relative, father/mother-in-law, brother/sister-in-law or son/daughter-in-law may not act as a witness. Further, a will shall not be attested by a person who is under fifteen years of age or who is unable to witness due to a mental defect. The Finnish Code of Inheritance includes detailed provisions on who may attest a will.
In the event that a person, due to illness or other compelling cause, is prevented from making a will in the above described manner, he or she may make it orally with two witnesses simultaneously present, or even without witnesses by way of a personally hand-written and signed document. A will made under such exceptional circumstances is deemed to have lapsed if the testator, after having been prevented, has for three months had the opportunity to draw up a will in the normal manner.
A will may be amended at any time, but an addition or an amendment must be made in the same way as the will itself – an amendment of the will is thus to be seen as a new will. A will may be revoked at any time, which means that the legal order of succession is reinstated, unless a new will is drawn up. The revocation must be done clearly, for example, by making a separate written notice of revocation or by destroying the original will.
It is recommendable to consult an expert when drawing up a will. An unclear will can lead to unnecessary, long and expensive disputes, if the document leaves room for several interpretations as regards what the testator’s last wish was.
Please do not hesitate to contact us if you are thinking about making a will. We are happy to assist you with planning and drawing up your will.