LEGAL MATTERS: Cut the procrastination, prepare wills
Will making is a necessity for every living human being, whether rich or poor but surprisingly most people who get deceased, do so without a statement of how they want their assets to devolve.
The chief culprits are lawyers who despite their deep knowledge of succession law, they still elect to die without leaving behind their wills.
We all live to die one day, but the tendency has been to procrastinate and want to prepare the document once death is looming — while on a sick bed.
We forget however, that often times death comes without a warning and the blunder of failing to properly ascertain how one’s estate should be distributed, leaves beneficiaries in acrimony and tearing each other apart out of greed and selfishness.
It is important to bring this important subject to the reading public’s attention, so that those who are laboring under the burden of procrastination may take remedial steps and prepare their wills without delay.
A will need not necessarily be written and as such, an oral will stands valid. The only disadvantage of an oral will is that it has to be proved by witnesses who due to the fallibility of human beings may recant the existence of the will after change of circumstances.
A written will is therefore, the best since the document will on the face of it, express the wishes of the testator. While a written will stands at an advantage, the history of litigation has proved that nomatter what clarity may be expressed in such a will, some beneficiaries may still challenge its validity.
Many a time, the Master of the High Court has been dragged to court by selfish and dissatisfied beneficiaries seeking to have certain wills set aside. This is common in large estates left behind by wealthy individuals.
In order to avoid the will falling foul of the law, special attention must be given to all the formalities that are required to be complied with in terms of Section 8 of the Wills Act [Chapter 6:06] (“the Act”). I must hasten to add that, a will need not be prepared by a legal practitioner for it to be taken as valid.
A testator may prepare his own will or have one prepared by an expert familiar with administration law or a lawyer for that matter.
A will must be in writing and must be signed on each page by the testator or some other person. “Some other person” suggests someone signing for a testator who is unable to append his signature, perhaps due to illness.
The signature must appear very close to the end of the written content to avoid fraudsters adding their own provisions after the demise of the testator.
The testator’s signature must be witnessed by at least two witnesses who must sign in the presence of the testator at the same time. Such competent witnesses must sign on each page of the will in the same manner as the testator.
In the event that a testator has had the will signed on his behalf by another person, such a document will have to be authenticated by a magistrate, a Justice of the peace or commissioner of oaths, any time before the testator’s death.
For the purposes of the act, a person shall be held to have signed a will in due form if he has written thereon, in his own hand, his surname or last name, or a name by which he is ordinarily known.
A simple mark shall suffice to stand in place of a signature for those who are unable to read and write. In terms of Section 13, the fact that a signature is illegible or partly formed, or is misspelt, shall not invalidate the signature for the purposes of the Act.
An oral will is made by an oral declaration on any matter that could be provided for in a written will. The declaration may be made according to any law or custom to which the testator was subject to when he made the declaration.
In order for the oral declaration to be accepted, the Master must enquire through witnesses about the existence of the oral will. Once accepted, the Master of the High Court may cause the terms of the oral will to be reduced to writing.
A will may be revoked at any time before the testator’s death. A change in circumstances like in the event of more assets being available for distribution, can give rise to revocation.
Alienation of affection or an estranged relationship with beneficiaries, can also result in a testator having a change in mind and revising the terms of his wishes.
Revocation of a will occurs when a testator makes a new will, including an oral one, which expressly revokes the first will or any part of the first will. The formalities stipulated in Section 8, do not apply to soldiers’ wills or to wills made during an epidemic. Due to space constraints, this area shall be discussed in detail in a future installment.
Once a testator who is married has subsequently remarried, his previous will shall automatically become void. This provision does not, however, apply to a spouse in a polygamous marriage.
Upon application to court, a will may be rectified if it fails to carry out the testator’s true intentions by reason of clerical error or word use, leads to superfluousness.
Muza is a Harare-based legal practitioner. He writes in his personal capacity.