Friday, June 17th, 2022
“The final will of Mr Bosco read as follows….”
These are words no one wants to hear about their loved ones. For death to be the most certain fact of life, it is graced with uncertainty. Legally the one way to make death certain is when a person drafts a will to be read upon his death. Now, no one wants to hear that a loved one is writing their will especially because this possibly implies that one is preparing to die, a thought that would leave a sour taste in anyone’s mouth. However, there is an important duty of the deceased to leave his house in order before his/her passing to avoid confusion.
“To mitigate complications and aid in the procedure of devolution of assets after death, a ‘will’ has to be well planned and drafted.”Henrietta Newton Martin
If you are a daily consumer of local news, you have probably heard about the drama that happens at funeral services in Uganda. It is at funeral services that illegitimate children pop out exposing all the skeletons one has kept in the closet. Though this may not come as a shock to some of you, a final will is a great way for one to control the events that happen after their departure.
The drafting and creation of wills in Uganda are governed by the Succession Act Cap 162, this is what we term estate succession where a person dies leaving a will or final testamentary disposition. A will or testament is a legal document that expresses a person’s wishes as to how their property is to be distributed after their death and as to which person is to manage the property until its final distribution. Therefore, a will has no effect until the testator’s death has occurred.
Like any legal document, it must be found valid. Persons capable of making will include:
* No person can make a will while he or she is of unsound mind, whether arising from drunkenness or from illness or any other cause. The test for this is that the person at the time does not know what he or she is doing.
On top of a testator having the capacity to form a will, a few important aspects make a will valid holding legal capacity. Here are a few key components of this;
1) The person making the will must be of sound mind at the time of the creation of the will. The test to determine if the person has the requisite capacity is if the testator knows that he or she has made a will, understands its effect, and understands its nature of it.
2) The will must have been executed free of fraud, duress, undue influence or mistake. Fraud involves false statements of material facts, known to be false by the party making statements to deceive the testator causing him to act in reliance on the false statements. Fraud can also be inferred if a confidential relationship exists between the testator and a beneficiary especially if the beneficiary played an active role in procuring the will.
3) Even if a will is handwritten, there must still be witnesses who see the testator sign his or her will. A witness must be aware that the instrument they are witnessing is a will although it is not necessary to know the contents of the will or document he or she is signing. The witnesses may also need to attest that they saw the other witness sign. The witnesses sign and dates the will. They then sign an affidavit that states their authentication of the will and their signature.
4) A will must dispose of only the property that is part of the decedent’s estate. It may list all property and assets that the testator owned at the time the will was created as part of the text of the will or in a separate schedule that is referenced in the will.
5) The will should state that the property is being disposed of by transferring it to a particular person or entity that is ascertainable. This person is known to be a beneficiary. This may be to a person, business, group of people (such as my children or my living grandchildren) or charitable organisation.
6) An executor should also be named in a will. This is the individual who follows the instructions of the will. If an executor is not listed, at the time the testator passes, a court may appoint one.
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