Why writing a will, trust is important

In this explainer, David Justine Bakibinga, a professor of commercial law at Makerere University, details why it is important for everyone to write a will. 

What is a will?
A will is a legal document that is also known as the last will and testament of a deceased person.

It spells out the person’s wishes in regard to, among others, the distribution or management of their property and assets and care of dependents.

That may include children, siblings, parents and other people under one’s care.

There are no oral wills. Wills should be in writing and signed by the deceased person as testator and witnessed in that persons’ presence by two adult persons.

Those are sometimes referred to as attesters.

The witnesses may not be required to be present at the same time, Section 50 of the Succession Act (as amended) 2022, requires each of the witnesses to append their names and signatures on every page of the document lest they render the page on which such details do not appear invalid.
 
Who should be making a will?

There is a general misconception that it is only the wealthy or those who possess assets and shares in major industries and corporations who should write wills.

Or that one of a certain age, say above 50, or that you have to have some terminal illness or any illness that might result in an abrupt death.

No. Every legal adult should write a will. You are never too sick, too poor or too young to write a will, death can come visiting at any time and without any prior warnings.

Why should you have a will?

The disagreements that erupted between the children and the husband of the deceased Justice Stella Arach-Amoko over where she should be buried should serve to reinforce the need for one to make a will.

It helps families and society avoid conflicts and strife that may arise out of lack of clarity on how assets are managed or even where the person should be interred.

Why should one leave a will?
Failure to make a will means decisions about your property or interment, as in the case of Justice Arach-Amoko, are left in the hands of either family members or the courts of law.

The decisions that they reach may not be reflective of what you would have wished for.

A will should be a stepping stone towards ensuring that your property does not end up in the hands of those that you do not want anywhere near it.

The document should be able to tell who should be getting how much of your property and who should be taking care of your children.

The document also ensures that your heir will find it easier to access and manage whatever you will have bequeathed to them.

Can a will be contested?
A will can be challenged in court at the time of application for probate or letters of administration.

Probate is the process of transferring property of a decedent to their heirs or legatees. It is the formal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries.

Who can contest a will?
Not everyone can contest a will. There are sections of our society where members of the extended family still come demanding for a share of their demised siblings’ property and often put up fights, but those have no place in a legal challenge to a will.

Similarly, one cannot contest a will just because they think the estate would be better managed by either themselves or another relative.

The will cannot also be contested just because one feels what they received was not a fair share of the deceased’s estate.

Only “interested persons” may challenge a will and for valid legal reasons.

You are considered an “interested person” if you were a beneficiary of a prior will; are a beneficiary of the “new will”; would be an heir if there was no will and intestacy law had been left to apply. 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 person who made the will. It implies that the person was not of “sound mind” at the time the will was said to have been written.

The will can be challenged where the interested person feels the testator was not in a state of mind to understand what they own, how they wanted it distributed and who their heirs are.

Other grounds include forgery of say, a signature or if the testator signed it under duress. However, evidence of undue interference has to be adduced.

The will can also be contested if there was another known will; where state requirements on say, number of witnesses, have not been met.

It is, however, important to note that some wills have “no contest clauses” which provides that a beneficiary or heir who launches an unsuccessful legal challenge inherits nothing. They are disinherited.

A will can also be contested if it was not properly executed as required by the provisions of the Succession Act (as amended) 2022.

How are executors of wills chosen?
Executors are usually named by the testator before their death. It is usually because the testator trusts that person to administer their estate well upon their death. The executor’s primary duty is to carry out the wishes of the deceased person based on instructions spelled out in their will or trust documents.

There are, however, cases where the courts name executors.

The court may, however, name an executor for an estate if the testator did not name one or where those who had been named died or are for some other reason unable to execute that duty.
 
Are there specific qualifications that one has to have in order to be an executor?

One does not have to have specific qualifications to be an executor of a will, but it is usually helpful if there is an attorney among the executors.

Are next of kin important in a will?
The next of kin is irrelevant to the making of a will. However, in the context of a will, next of kin may be beneficiaries or witnesses to the will.

What about administrators of an estate?
An administrator is appointed by the court to administer the estate of a person who dies without leaving a will. The office of the Administrator General facilitates that process by granting a person who applies for letters of administration with a certificate of no objection

On April 8, 2018, Justice Stephen Mubiru, while delivering a judgment in the Anecho Haruna Musa versus Twalib Noah, Adam Juma and Maliyamungu Majid case, pointed out that “the duties of an administrator were never designed to take a lifetime to discharge or to be unnecessarily prolonged. It is intended to be a short-lived process.”

He added that the administrator only holds assets in a deceased person’s estate “on bare trust or the beneficiaries.” Essentially, as per Justice Mubiru, the administrator’s role is “merely distribution” of the assets to the beneficiaries.

What happens if a written will is either partially destroyed or stolen?
If a will is lost or stolen before it is proved in court, the effect is that the deceased is adjudged to have died intestate. 

The estate is then put under administration and the property distributed in line with the provision of Section 27 of Succession Act (as amended) 2022.

Would a dying declaration be considered some form of a will?
A dying declaration is a statement, written or verbal, of relevant facts made by a person who is dead, normally relates to the cause of death of the declarant and is proved by the recorder.

Additional information from www.americanbar.org, www.investopedia.com, and www.findlaw.com.

How is one’s estate managed when the person leaves no will?
If a person dies without making a will, the administration of that person’s estate is governed by Section 27 of the Succession Act (as Amended) 2022.

There are different ways in which the property of a person who has not left a will is distributed.

Where that person has a spouse, a lineal descendant, a dependent relative and a customary heir, the spouse takes 20 percent; the dependent relatives four percent, the lineal descendants 75 percent and the customary heir one percent of the property.

Where the person has no spouse or dependent relative, lineal descendants take 99 percent and the customary heir one percent of the estate.

Where the person is survived by a spouse, a dependent relative and a customary heir but no lineal descendant, the spouse receives 50 percent, the dependent relative 49 percent and the customary heir one percent.

Where the person is survived by a customary heir, a spouse or a dependent relative but no lineal descendant, the spouse takes 99 percent and the customary heir one percent.

Where the person leaves no spouse or other person surviving him other than a customary heir, the estate is divided equally between relatives nearest in kinship to the deceased.

Twenty percent of the deceased’s estate will, however, be held in trust for the education, maintenance and welfare of lineal descendants who are unmarried and below the age of 25 and minors until they attain the age of 18.

A lump sum settlement is made to a lineal descendant who has a disability, was unmarried at the time of the person’s death and wholly dependent on the deceased.

The distribution mechanism as defined by the Succession Act may not be reflective of what you would have wished for.