In this explanation, David Justin Bakibinga, A commercial law professor at Makerere University details why it is important for everyone to write a will.
What is will?
A will is a legal document also known as the last will and testament of a deceased person.
It specifies a person’s wishes regarding, among other things, the distribution or management of their property and assets and the care of dependents.
This can include children, siblings, parents and other people under his care.
There are no oral wills. Wills must be in writing and signed by the deceased person as testator and witnessed by two adults in that person’s presence.
They are sometimes referred to as certifiers.
Witnesses may not be required to be present at the same time, section 50 of the Succession (Amendment) Act 2022 requires each witness to affix his name and signature to each page of the document so that they do not reflect the page on which such particulars do not appear invalid .
Who should make a will?
There is a common misconception that only the wealthy or those with assets and shares in large industries and corporations should write wills.
Or one of a certain age, say above 50, or that you must have a terminal illness or any illness that can lead to sudden death.
No. Every legal adult must write a will. You are never too sick, too poor or too young to write a will, death can come at any time and without any prior warning.
Why do you have to have a will?
Disagreements between the children and the husband of deceased judge Stella Arach-Amoko over where to bury her should reinforce the need for a will.
It helps families and society avoid conflicts and disputes that can arise from a lack of clarity about how assets are managed or even where a person should be buried.
Why should you leave a will?
Not having a will means that decisions about your estate or burial are, as in Justice Arach-Amoko’s case, left either in the hands of family members or the courts.
The decisions they make may not reflect what you would like.
A will should be a stepping stone to ensure that your assets don’t end up in the hands of those you don’t want.
The document should be able to say who should receive the amount of your property and who should take care of your children.
The document also ensures that your heir will have an easier time accessing and managing what you have bequeathed to them.
Can a will be contested?
A will can be contested in court when applying for a probate or letters of administration.
Probate is the process of transferring a decedent’s property to their heirs or legatees. It is the formal process that recognizes a will and appoints an executor or personal representative to administer the estate and distribute the assets to the intended beneficiaries.
Who can contest a will?
Not everyone can contest a will. There are sections of our society where extended family members still come to claim a share of their deceased siblings’ property and often fight, but they have no place in the legal challenge of a will.
Similarly, one cannot challenge a will simply because they feel that the estate would be better managed either by themselves or by another relative.
A will cannot be contested just because a person feels that what they have received is not a fair share of the deceased’s estate.
Only “interested persons” can contest the will, and for valid legal reasons.
You are considered an “interested person” if you have previously been a beneficiary of a will; are beneficiaries of the “new will”. would have been an heir if there had been no will, and remained to enforce the law of independence. This includes siblings and spouses.
What are the grounds for contesting a will?
One of the biggest reasons is lack of testamentary capacity on the part of the testator. It implies that the person was not of “sound mind” at the time the will was said to have been written.
A will can be contested when the person concerned feels that the testator was not in a state of mind to understand what they own, how they want it distributed and who their heirs are.
Other grounds include forgery of the statement, the signature, or if the testator signed it under duress. However, evidence of undue interference must be adduced.
The will can also be challenged if there was another known will. where, for example, state requirements regarding the number of witnesses were not observed.
However, it is important to note that some wills do not have “contestation clauses” which provide that a beneficiary or heir who files an unsuccessful legal challenge does not inherit anything. They are disinherited.
A Will can also be challenged if it has not been properly executed as required by the provisions of the Succession Act (Amended) 2022.
How are the executors of wills chosen?
Executors are usually appointed by the testator before their death. This is usually because the testator trusts that person to manage their estate well after death. The executor’s primary responsibility is to carry out the deceased person’s wishes based on the instructions in their will or trust documents.
However, there are cases where courts appoint executors.
However, the court may appoint an executor of the estate if the testator has not named anyone, or where the named persons have died or are otherwise unable to fulfill this duty.
Are there specific qualifications one must have to be a performer?
It is not necessary to be specially qualified to be an executor of a will, but it is usually helpful if there is a lawyer among the executors.
Are next of kin important in a will?
A close relative has nothing to do with making a will. However, in the context of a will, next of kin may be beneficiaries or witnesses to the will.
What about estate administrators?
An administrator is appointed by the court to manage the estate of a person who dies intestate. The Office of the Chief Administrator facilitates this process by issuing a No Objection Certificate to the person applying for letters of administration.
On 8 April 2018, Justice Stephen Mubiru, while delivering judgment in the case of Anecho Haruna Musa v Twaleeb Noe, Adam Juma and Maliyamungu Majid, pointed out that “the duties of a manager were never designed to take a lifetime to be performed or fulfilled. to extend unnecessarily. It is expected to be a short process.”
He added that an administrator only holds assets from a deceased person’s estate “probably or on a beneficiary basis.” Essentially, according to Justice Mubiru, the administrator’s role is to “directly distribute” assets to the beneficiaries.
What happens if a written will is either partially destroyed or stolen?
If the will is lost or stolen before it can be proved in court, the effect is that the deceased is considered undead.
The estate is then placed in administration and the estate is distributed in accordance with the provisions of section 27 of the Succession Act (Amended) 2022.
Would a dying declaration be considered a form of will?
A dying declaration is a written or oral statement of relevant facts made by a deceased person, usually relating to the declarant’s cause of death, and evidenced by the recorder.
More information at www.americanbar.org, www.investopedia.com and www.findlaw.com.
How is one’s estate managed when a person does not leave a will?
If a person dies intestate, the administration of that person’s estate is governed by section 27 of the Succession (Amended) Act 2022.
The property of a person who did not leave a will is distributed in different ways.
If that person has a spouse, a lineal heir, a dependent relative, and a common heir, the spouse takes 20 percent. dependent relatives four percent, lineal heirs 75 percent and common heir one percent of the property.
In the event that the person does not have a spouse or dependent relative, the domestic heirs take 99 percent of the estate and the common heir takes one percent.
Where a person is survived by a spouse, a dependent relative, and a common heir, but no lineal heir, the spouse receives 50 percent, the dependent relative receives 49 percent, and the common heir receives one percent.
Where a person is survived by a common heir, spouse or dependent relative but has no lineal heir, the spouse takes 99 percent and the common heir one percent.
If a person does not leave a spouse or a survivor other than a common heir, the property is divided equally among the closest relatives of the deceased.
Twenty percent of the decedent’s estate will, however, be held in trust for the education, maintenance and welfare of unmarried offspring under the age of 25, and minors up to the age of 18.
A lump sum payment is made to a lineal heir who has a disability, was unmarried at the time of the person’s death, and was wholly dependent on the deceased.
The distribution mechanism as set out in the Succession Act may not reflect what you would like.
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