A common problem faced by families upon the demise of a loved one is the disposition of the assets of that person. The absence of a Will can result in lengthy and often acrimonious dispute. This write up is premised upon an appreciation of the frailty of the human life and the importance of providing for one’s immediate and extended family after death by writing a Will. Its main focus will be to apprise people of the need to write a Will and “settle their families” as they would wish after their passing.
WHAT IS A WILL?
A Will is defined as a document by which a person makes a disposition of his property, real or personal, to take effect after his death 1. A Will can also be described as testamentary document made voluntarily with a sound disposing mind by a testator (maker of a Will), duly executed according to law where properties are being disposed according to “Wills law” and gives directive as he may deem fit. A person dies either testate or intestate. One dies testate if at the time of his death he had a valid Will by which he disposes off his properties. On the other hand, a person is said to have died intestate if at the time of his death, he either had no Will at all or it turns out that the Will becomes invalid in law, having failed the statutory test of a valid Will. In each case, the law has detailed and indeed complete provisions for the administration and distribution of the deceased’s property.
TYPES OF WILLS
- Attested Will – An attested Will is a witnessed Will and is the most common among Wills. It must be signed by the owner (Testator) of the Will and must be signed by the witnesses.
- Holographic Will2 – A holographic Will is that which is written in the handwriting of the maker i.e. the Testator
- Joint Will – As the name implies, a joint Will is usually made by two people. When one of them passes on, the Joint Will usually ensures that the estate of the deceased passes on to the other. The Joint Will also determines how the estate will be distributed when the second person passes on. A Joint Will prevents the surviving party from changing the Will or changing his/her mind on how the estate will be distributed upon his/her death. This ensures that the wishes of the first person (in the Joint Will) are honoured.
- Nuncupative Will – A Nuncupative Will is an oral Will made before at least two credible witnesses. It is a Will that is spoken and not written. Many countries do not recognise the validity of Nuncupative Will as it qualifies as a Will made under customary law.
- Video Will – A Video Will is one in which the Testator reads the Will and explains the mode of disposition of the assets or the estate of that deceased person . The advantage of the Video Will is in the ability it affords the Testator to explain with emotions his/her decisions on the disposition of his assets. The Testator can personalise his/her explanation to each beneficiary. The video can provide compelling proof that the Testator was mentally competent if there is a challenge to the Will’s contents. Whilst a video Will may be subjected to dispute (due to technology change or acceptability under the law), it is wise to have a properly prepared written Will and the video Will as a supplementary (not substitute)
WHO SHOULD MAKE A WILL?
It behoves on a person who cares about the affairs of his/her surviving relatives to make a Will. Without a Will, statutory provisions direct who inherits the properties of such a person. A Will is also vital if a person has children or dependants who may not be able to care for themselves. Without a Will there could be uncertainty on who will look after or provide for them after such a person dies3.
The requirements of a valid Will include the following:
- The Will must be in writing4
- The maker of the Will must be over 18 years old5 or have been or be married
- The maker must be of sound mind6
- It must be signed or marked by the maker or his/her signature or mark acknowledged in the presence of two witnesses7
- The will must be signed in the maker’s presence by two witnesses.
- The witnesses cannot be people who will gain from the Will. The witnesses’ spouses/civil partners also cannot gain from the Will.
- The two witnesses must see the maker sign the Will but it is not mandatory that they see the contents.
Absence of any of these requirements may invalidate a Will. In the event that the maker of the Will decides to change or amend his/her Will, this can be done by a codicil; this codicil must meet the same requirements set out above in order to be valid.
CAPACITY TO MAKE A WILL
Every person has capacity to make a Will9, but there are exceptions to this rule. A person under the age of 18 years does not have capacity to make a Will10. There is an exception where the person is in actual military service and by law qualified to make a privileged Will. A privileged Will is not expected to conform to the requirements of a Will by law, both as to capacity and form. Any soldier in actual military service or any member of the air force, mariner or seaman being at sea may dispose of his personal estate without complying with the requirements of the Act11. One of the conditions is that the Act applies to soldiers who must be in actual military service, which is interpreted to mean services in connection with military operation or training for such operation which is imminent.12 Another capacity which the maker of a Will must possess according to law is “intention” to make a Will; this is otherwise referred to as “animus testicandi”. The import of this is that the testator must possess the mental capacity which shows a sound disposing mind and memory.Despite the above, the testator must not only possess the oriental capacity when he is giving instructions as to how his property should be shared, he must also have mental capacity when signing or executing the Will13
WHY MUST YOU WRITE A WILL
Many reasons have been adduced to the act of making a Will. The making of a Will for instance excludes the rules of inheritance under Native Law and custom. This point was a ratio decidendi in the decided case of Lawal Osula v Lawal Osula 14. Furthermore, it excludes the rules of inheritance under the provision of Section 39(1) of Marriage Act whereby any person who dies intestate (not having a valid Will), his estate or properties would be administered according to statute law. Making a Will gives room for a testator to choose people he wants as his personal representatives. If one dies without making a Will, the law imposes rules which dictate how one’s property would pass. This means that one would not have control over who would be beneficiaries of his property. By making a Will, one can choose executors of one’s choice. These people would carry out one’s wishes and make sure the property goes to whom it was intended. That means one should choose known people who are suitable and who are likely to be willing to act. Since it is the executors who have the responsibility of administering the estate, including the distribution of personal effects and the contents of the house and the sale of the house, it is of vital importance that the right person is chosen.
OTHER BENEFITS OF WRITING A WILL
Making a Will gives one the opportunity of ordering his or her affairs for proper disposition after one’s death. If one does not leave a Will then the law will step in and a rigid set of rules, known as the Intestacy Rules, will dictate what happens to the property and money left behind by the deceased. These are some of the other benefits of making a Will:
- Providing financial security for loved ones;
- Making gifts of possession and money;
- Appointing guardians for your children;
- Choosing executors;
- Avoiding inheritance disputes;
- Creating a life interest;
- Specifying wishes for your funeral
- Avoiding the unintended consequences of intestacy
CONSEQUENCES OF DYING WITHOUT A WILL
Dying without a Will can lead to many problems and can cause a great deal of delay, expense and distress to loved ones left to deal with the deceased’s estate. If a person dies without making a will and has no relatives, such a person’s properties (real and personal) will pass to the state (bona vacantia). If there are no relatives but friends or charities which a person would like to benefit from his/her estate, the only way to ensure that these people will benefit rather than the state is by preparing a Will. Even if a person is married, the whole estate does not necessarily go to the surviving husband or wife. If there are no children the estate will go to the surviving spouse up to certain specified limits and the remainder will go to other family members depending on who survives the deceased. For example, if the deceased had siblings and parents then they would share in the remainder of the estate. Herein lies the issues with customary laws which permit relatives to share in the testamentary disposition of asset which belonged to the deceased. This is more unjust especially where such descendants may not necessarily have had a good relationship with the deceased in his lifetime, or the relative was indolent or lazy. Added to this are the customary pressures faced by widows to prove that they were not the author of their husband’s demise and other such obnoxious or outdated customs still in practice. Executing a Will obviates the need for these customs or rules on intestacy. It offers an orderly dispensation on behalf of the deceased. If the maker of the Will has children but no Will or nominated guardians for his/her children, then the court will decide who will look after them if the maker passes on. A simple clause can be included in the Will to ensure that the children are looked after by the guardians chosen. Not having a Will in place can open up the possibility of long and protracted lega l battles between friends, partners and relatives. Put simply, without a Will the person’s wishes are ignored. In addition, if any one dies without making a Will, the personal representatives who have to deal with the property comprised in the estate would be determined by statutory rules.
ADVICE AND CONCLUSION
African society provides its own traditional customs which may be unfavourable to the immediate family of a deceased person. The requirements contained in the Rules of Intestacy under the Marriage Act, likewise leaves gap s for acrimonious litigation and unsatisfactory effluxion of time before letters of administration may be obtained from court. It is often better to avoid this delay and posthumous division by simply making a Will. Making a Will wherein one’s family is well taken care of offers the greatest recipe to the oppressive tendencies of rapacious relatives and humiliating experiences of potential widows and orphans in our society. When a man or woman makes a Will, he or she can speak silently but authoritatively from the grave as regards who gets what from the estate left behind15. Lest one is misunderstood, a well-balanced Will reckons with the interest of everyone fairly and equitably and within the limit of available resources. Finally, if you have made a Will today, you would have secured the future of your family. You would minimize the tears of regret and the pain of separation. Don’t postpone it, decide quickly and leave behind your affairs in an orderly fashion .On a sober note, considering the certainty of death, there is no need to pretend that we are here to stay. The point is, we are destined to answer the call someday, sometime and when we least expect. It underscores the need to act fast and settle this matter without delay. Whatever it is that we can do to safeguard the future and destiny of members of our families while we are still alive, we should do. Making a Will is a veritable medium of coming to terms with the welfare of our families who will outlive us. So do not be afraid of the unknown. Do not think that Wills are morbid reminders of mortality. They are an almost eternal testament of one’s love or lack of. They are the orderly transition that one can give to one’s affairs after passing and it offers peace of mind while we live on this earth. Do not be scared to discuss the end; Just talk to your lawyer today.