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Last updated on January 6th, 2023 at 12:07 pm
Addressing the subject of death, or writing wills has never been a piece of cake since everyone hopes to live today, tomorrow, the day after, and the next day. Few people come to terms with the fact that we all must end dead and that it happens unexpectedly.
It is a general rule with no exception. And in such times of uncertainty ,with a raging pandemic amongst us, this topic is a reality we must come to terms and deal with, lest we accept third parties to deal with our affairs while we are long gone.
While it is true that life’s length is determined by a supreme being and the forces of fate, it is true that life’s events prior to one’s demise can capably be controlled by oneself. The famous saying goes; “By failing to make decisions for yourself, other people will make them for you” that is extremely true for persons who die intestate; with no will.
Despite inoculation campaigns and standard operative procedures, COVID-19 infiltrated Uganda and has been responsible for fatalities and deaths. Uganda is currently experiencing a second wave of the pandemic with 86,140 confirmed cases and 2,062 death cases.
This situation has branded most Ugandans candidates for the COVID 19 infection and sad to note; candidates of death too. The question today stands; How many of the COVID-19 victims died testate? How many persons have written their wills ahead of time in preparation of the unexpected?
A will is a legal instrument that permits a person; the testator, to make decisions on how his estate will be managed and distributed after his death. A testator is a person who writes a will. When a person dies and leaves a valid will behind, he is deemed to have died testate, while one who leaves no will is said to have died intestate. The law governing the validity, effectiveness and classifications of wills in Uganda is the Successions Act CAP 162.
The categories of persons accepted under the law to make wills include persons above the age of eighteen, of sound mind, married women, the deaf, dumb or blind, provided they be made aware of the kind of document they are making. A person ordinarily of unsound mind can also make a will during the times he or she is of sound mind.
For a will to be valid and effective, the basic requirements differ depending on the jurisdiction. In Uganda, it is required that the will be written by someone of sound mind; which means one must have the requisite capacity to know that he or she has made a will, understands its effect and understands the nature and extent of the wills applicability.
Such a testator must be one over the age of majority which is eighteen years for the case of Uganda. A child, is therefore not capable of making a will. The will executed must be free of duress or any form of force on the testator, undue influence imputed on him or her, fraud or mistake. There must be at-least two persons to witness the writing of this will, before whom the testator signs and dates the document.
It is important to note that a will must only dispose off property that is part of the deceased’s estate or property owned by the testator at the time the will was made. The will may go on to list the properties and assets of the testator as a part of the will or in a schedule referenced in such a will. The beneficiaries of such property need also be named and these may either be persons or groups of people or Organizations. The executor; who is the person in charge of putting to life the desires of the testator should also be named. In the event that an executor wasn’t named, a court of law may go ahead and name one.
There are different types of wills that one can opt for, depending on the circumstances of each case he or she may subscribe to. These range from testamentary wills, to joint wills, holographic wills and privileged wills, amongst others.
A testamentary will which is the most common type of will, transfers the testator’s assets to the beneficiaries upon his death. These wills also appoint guardians for minors, name the executors to execute the will and may also set up trusts for the beneficiaries.
A joint will on the other hand is one made mostly by husband and wife agreeing to leave the assets to the surviving partner. Both partners sign such a will and agree not to make any adjustments to the will after the death of one of them. In the event that the surviving partner passes on too, the property or assets pass to the children.
A mirror will or a reciprocal will works much in the same way its name suggests. These are usually two different wills made by a couple, with mostly similar content and slightly different terms. These can be revoked or cancelled at anytime by the testator. Often times, the executors in mirror wills are the partners such that in the event of death of one of the partners, the other takes on the properties and in the event of death of both partners, the children take up the assets.
A holographic or living will although foreign to the Ugandan law is a will written in the handwriting of the testator and signed by him or her. Although valid in other jurisdictions, these wills currently face a lot of question in the rise of modernity and statutory requirements.
Lastly, are the privileged wills that remain valid regardless of the fact that they may not meet the statutory requirements. These must be made by persons with privileged status like soldiers in active military service or those about to be posted to an operational military area.
Although writing a will can seem overwhelming, one can get started by compiling a list of debts and assets including any personal property one may wish to transfer to a specific person or entity. Important to note is that although one takes up the task of drafting a will all by themselves, professional guidance may be needed when writing such a will as even a slight difference in wording can drastically change the intention, meaning and validity of the will.
This is a fair reminder to us all; while you may escape parting with legal fees to draft your will before your death, your family, spouse or children will never escape parting with legal fees to hire a lawyer to process letters of probate to manage and partition your estate in the event that you leave none.
If that doesn’t invoke you enough; be aware that any decisions relating to your hard earned wealth and properties will be left in the hands of judges or state officials, after your loved ones spending a lot of additional time, money and emotional energy sorting out your affairs when you are gone. So why not simply write a will ahead of time to save your family, spouse and children such experiences while you hope to live today, tomorrow, the day after, and the next day?
Josephine Luzige is a lawyer,
Policy advocate, Writer
Immigration law analyst and
Founder of Youth Legal Platform
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