Why you must write your Will

Most people loathe the thought of dying and this probably explains why they don’t have Wills.

Penning down how one might want his/her property to be shared has several myths surrounding it. So much so that the topic is often viewed as taboo. Most people put off writing wills saying it like “inviting death.” Whereas some believe when you write a Will, ‘you are pronouncing death upon oneself; to others especially elites, it is viewed as succession planning.

Loss has occurred on so many levels that even those who have not lost a loved one may be experiencing grief and not even recognise it. With the second wave of the Covid-19 pandemic stealthily robbing us of our loved ones, the question is: How many ever thought of putting ink to paper in what would have been termed as Will Writing?

The deaths and pain caused by the pandemic is unprecedented as one loses a mother, father or sibling within the same period. But what would befall the bereaved family without a Will?

Will

A Will is a written document stating the wishes of a person on how his estate/ properties, children or other personal effects should be handled when he or she is dead.

Mr Andrew Kyambadde, a lawyer and tax attorney, Andy Advocate recalls the time (years ago) when he opted to write a will.

“The decision was tough but worthwhile. I spent two sleepless nights with almost no food,” Mr Kyambadde recalls.

This he says was as a result of the thoughts on how he had to distribute his property such as clothes, shoes, any bank account or savings.

“I want to save my family from the hassle they would go through after I pass on. With the Will, no one can snatch my property from them. This is the only way to ensure peace prevails within the family after my demise and proper management of the property,” Mr Kyambadde adds.

Every adult person (18 years and above) of sound mind with death anticipation should make a Will.

“Every person above 18 years has the capacity to make a Will. Writing a will is a very scary moment but people have to be encouraged to do so. This means after you have died, your legacy lives on through children or family members,” he says.

It is upon an incumbent who thinks and knows that he owns property such as a car to make a Will if they do not want it to be mismanaged.

A will is secret and can be kept in a bank or with someone you trust. It only takes effect after the death of the writer.’

This means that as long as the writer is alive, it is useless and no one can benefit from it.  For instance, a person who is given some property cannot demand for it.

He adds that it includes all children within wedlock or out of wedlock. In Uganda, there is no such thing as ‘bastards’. If a person chooses not to give the child, he must clearly stipulate why because without which the Will is useless and can be challenged.

For those with two wives, the first wife should have a share in the property. If not done to include a legally married wife, then that is questionable by the judge. “A Will is a family matter and it protects a woman because she is a weaker party.”

Benefits of Will writing

Mr Rama Omonya, a lawyer and consultant, says a Will must be written, signed and witnessed by two witnesses. Except for Privileged Wills (for sailors at sea or soldiers at war) that may be made orally to two witnesses who must later reduce it into a document. 

“A will can state how the properties should be distributed or managed, who should benefit or even how one wants to be buried. A person can even give his or her own body (upon death) to a medical or research institute,” Mr Omonya explains.

 “It is very important because it prevents conflicts amongst the surviving relatives. It also allows smooth transition and management of assets of a deceased person,” he reveals.

He notes that courts are always faced with difficult cases where a person dies without a Will. Most of these conflicts could result in death amongst siblings or relatives.

But when a valid Will is left by the deceased, incidences of conflicts are minimised and courts find it easy to issue orders for enforcements of such a wish.

Despite the fact that we are living in tough times and surrounded by a lot of uncertainties, for instance Covid 19 that is taking away our dear ones, Mr Omonya says, “I think we should not tie the making of a Will to the current situation. It can cause more panic in an already stricken situation.”

 However, we all know we can die any time whether it’s an accident, disease, homicide or any other cause. People should practise this and the beauty is, you can always change.

A Will can be revoked (withdrawn) or altered by the maker anytime as long as they are in good mental state. The same mental capacity needed to write a will is also needed to withdraw or alter it.

The maker of the will can write another document to add onto the will which is already written and signed. This addition is called a codicil and amends the Will. The Codicil must also be witnessed the same way the main will was witnessed. 

When to write a Will

Circumstances

Many people think that a Will is only made when you are about to die.

Mr Omonya concurs that to this extent, many people think when you make a Will, it is a premonition that you are about to die and so many people avoid it.

“Some people think it is only those with a lot of properties who should make a Will. This is not right. Almost every adult person has property which is often called a personal estate,” he comments.

This can be the clothes, money at bank or even mobile platforms, debt owed to you, salaries, gratuity, National Social Security Fund (NSSF) contributions or interests in family land which has not yet been divided or parcelled out. To this end, almost every adult has property and should make a Will.

However, he notes that some people like Muslims believe a Will is not necessary because the Quran and Sharia law lay down an elaborate mechanism of distribution of properties of the deceased. This is true and most of those mechanisms are almost similar to what the law (Succession Act Cap 162) provides.

The only challenge with this approach is that the District Khadis Courts are not operationalised yet as required by the constitution.