Writing a will

If you are married and/or have children, a will is a must-have. How do you convince your spouse to draw one up without appearing pushy? What are the legal aspects of writing a will? Mwereti Kanjo seeks answers to these questions.

With death’s lack of manners, dropping by unannounced, you want to be prepared and make sure that your spouse and children are left secure and protected by a legal document.

‘Introduce it lightly’

Of course, bringing up the issue of a will with a loved one might be tricky. According to marriage counsellor Constance Masamba, the subject must be introduced as part of chatter.

She points out that one can start by citing the sudden death of Bingu wa Mutharika then conclude on the importance of being prepared.

“At all cost, avoid being too straightforward about it because you might scare your spouse. He might start thinking that you cannot wait for him to die. Bring it into the conversation gently. Mention the importance of securing your property for your children and then elaborate. Do not be too pushy,” advises Masamba.

Once you have established the need for a will, how do you go about it? But you have no idea where to start from, how to go about it wondering if you are eligible or only for the rich and so many other questions. Here are a few tips:

Lawyer and director of Women and Law in Southern Africa (Wilsa) Seodi White says any person who is of sound mind and is not a minor can dispose of all or any of his or her property after his or her death by will.

“Anyone can write a will, just make sure you fulfill the age requirement. A will may appoint persons who are not minors to administer the estate of the testator or any property which is disposed of by the will. This means that any person may appoint someone in the will to distribute the estate according to their wishes as expressed in the will.

“A person may appoint a guardian of his or her minor child for the administration of the benefits of such child under the will. If the person refuses to be such a guardian, the law empowers the court to appoint the guardian for such child. One must make sure that they bequeathing property belonging to them and not to other people. So, in the case of a husband, he must bequeath his property or his share and not his wife’s share as well. The same goes for wives,” says White.

She outlines a few important requirements:

• Make sure that all the rules for writing a will are carefully followed.
• Your will must be in writing. A person who cannot read or write can ask someone whom he or she trusts to write a will for them.  This Will should be read back to the person who should thumbprint it to certify that the contents are really his or her wishes.
• Your will should be signed by you in the presence of two people, called “witnesses”.  These two witnesses should actually see you signing your Will.
• These two people are witnesses to the signing of the will only.  They are not witnesses of what is written in the will.  Therefore, it is not necessary for the witnesses to see what has been written in your will.
• The two witnesses should also sign the will in your presence and in the presence of each other.  The witnesses can also thumbprint if they cannot write.
• The will must be dated.  This is important because a person can leave several wills, but the will which can be accepted by the court is the last one.  If the date is left out, the will is invalid.
• The will can be written in any style, as long as it states your intentions as to who you want your property to go to.
• You need to be specific about what you are leaving in your will.
• If you are not specific, then some of your property may be distributed according to the rules of intestate succession as provided by the Act.