Things to consider before and at the time of making a will

 

There was a time I was believing to make a Will is just like wishing or predict your own death. That made me worry too much when it came to the issues relating to a Will. I believe the same situation is facing many people especially to those from African societies whereby making a Will it is a something most people doesn’t like to associate with. 
Furthermore, others believe a Will is for the intellectuals or elders or males or those who are about to die or wealthy people owns big things like houses, shares in different companies and so on. Those queries are going to be covered in this article stage by stage. Briefly, I am going to look on the legal meaning of Will, types of Will, what makes a Will valid and why a Will should be made.

What does a Will mean?

It is a declaration whereby a person who is making a Will (testator) explaining how his estate is going to be administered after his or her demise. In a Will the testator may arrange things like in how his or her estate is going to be administered, which hear or beneficiary is going to inherit his or her estate and with what amount, the list of properties fall in his or her estate, debtor or/and creditor of testator and how his or her remains will be cemented.

It should be remembered that failure to make a Will or leaving aWill with some errors may result to distribute the estate by following the rules of intestate succession (rules which is used to distribute the deceased’s estate for those who did not leave a Will).

  

Types of Will

It depends on how you put them; it can be one or more depends on where you stand. But my research and experience in legal fraternity I have come up with four types of Will. Some categorizes them into two types of the Will i.e. Oral and Written Will  which might be correct. The aim here is to makes you understand than being too academic. It is my sincerely hope that you might come up with less or more types after take into consideration the herein explanation.  Now lets take a look:

1. Oral Will
This is a kind of Will which is normally made by word of mouth. Although it is very difficult to prove the existence of this kind of Will but it has a legal recognition as others does. For instance, The Local Customary Law (Declaration)(No.4) Order, 1963 it requires such kind of Will to be witnessed by not less than four (4) witnesses i.e. two should be the relative of the testator and other two unrelated. If the decease at the time of making a Will has a wife or wives, they should be present too.

Take note that the wife or wives are out of the required four witnesses. If this and other required legal formalities are not met then a Will would be rendered void.

2. Written Will.
The written will is presented by way of writing. The main purpose of this Will is just the same like the previous one I have mentioned above. This Will has the strictly rules and should be adhered or otherwise would be rendered void.

The Will should be written and signed by testator in front of not less than two witnesses in which one should be the relative of testator.

The written Will can be revoked (changed or cancelled) by the same written Will, likewise it can do the same to the oral Will but oral Will cannot do the vice versa. And the one who should be doing all that has to be a testator and no one else.
      

3. Mutual Will
This kind of Will is written with two persons who have the same intention(s). In a mutual Will both parties has to reach a simultaneous agreement concerning certain things in the Will jointly.

This kind of Will is highly preferred by spouses. Under the said mutual Will testators can agreed apart from other things that the estate would pass to the remaining survival in case one between them die and then after when the survival or both passed away.
It should be known that this kind of a Will cannot be changed otherwise later in case one between the testators dies.

4. Conditional Will
In this Will, certain condition(s) are provides and should be met first before the performance of Will. A mutual Will will have a legal effect after provided condition(s) are met. The conditions under the Will should be possible to fulfill. The impossibilities on condition(s) would render a Will nugatory (no value. 

For instance, I may leave a Will to my son 'Comfort' promising him a certain plot of Land but until he has a College Degree. This is conditional Will intending to come into force after a son graduated a collage and finally have a degree. The son before that he cannot able to inherit the said plot until having a college degree.

What makes a Will valid?

A Will should swim in the following values which I am about to explain unless it might be rendered invalid and the rules of intestate succession will be followed regardless you have left a Will.

1. The testator should have a legal capacity in order to make a Will. The legal capacity of testator is the age of majority i.e. eighteen (18) years old and mental fit at the time of preparing a Will. In terms of age under Customary Law the testator should be at twenty one years (21) old or above. If the maker of a Will has a temporary insanity, he or she can make a Will when he or she is mental stable. In such situation a Will will have the legal impact. 
2. The testator should be conversant with what is written in the Will. If it happens testator is not the one who has written a Will then he or she should be told what is written therein before sign it. This is happening in case a Lawyer or another person is the one who has written a Will with testator’s direction.  
3.  In case of the written will it should contain the testator’s names.   
4. A Will should mention an Executor. 
5. In case of the written Will it should contain a date on which it was made.       
6. A Will must state the nature and value of properties which fall under testator’s estate. If there is a  property shared with another person then a Will must state that.       
7. A Will should mention down hears and beneficiaries of the estate. 
8. A Will should state a situation in case hear(s) and beneficiaries preceded testator.
9. A Will must take into consideration marriage which might be contacted after the Will made. A marriage in one way or another will affect a Will made before it.
10. In case of the written Will it should be signed in the presence of all required witnesses.
11. Testator must show that he or she made a Will with a free Will..    
12. A Will must be attested. 
13. Testator must put a clause which revokes the Will which was made previously. This will clear doubts if there is more than one Will. 
14.   If a testator disinherit a hear must state the reasons therein.   

In case the above mentioned features are not covered in the Will it might cause a problem at the future. And as I explained elsewhere in this article the rules of intestate succession might follow in administering and distributing the deceased’s estate depending the nature of situation. 

Note: It should be remembered that there is no a clear format on how to write a Will, however the above covered values must be taken into account before and at the time of making a Will, doing that will make your Will valid as any kind of qualified Will.

Why a Will should be made?

1. It will help the testator to make an arrangements on how his estate would be administered after his or her demise. This will restrict the strangers from messing up with the deceases estate.
2. Testator will avoid rules of intestate to be applied in administering and distributing his property. As I explained elsewhere in this article if you don’t arrange while you are still alive on how you want your estate to be managed then after your death someone else Will do that for you in his way, that is to say the rule of intestate Will take over in administering and distributing your estate even if it is against what you would prefer.
3. Testator would be able to choose a person he trusts to administer his estate and take care of his children upon his demise.
4. A Will would help to discover the properties owned by deceased; including who is going to get what with which ratio.  
5. In the Will, testator may provide on how he or she is going to be buried. Here the testator may explain as much as possible on how his or her remains will be cemented.   

At which time a Will can be made? 

As I stated earlier the main purpose of preparing a Will is to make sure an arrangement is set on how testator's estate is going to be administered upon his or her demise. Most people think a person should be wealthy in order to leave a Will. That is wrong because one may leave a Will explaining not to be buried instead his or her body being preserved and used in experiment by Medical Doctor Students in certain University.

At any time a person can prepare a Will. No one knows when he or she is going to die so it is important to leave the Will as early
as possible and not until you are hospitalized or unconscious.

Who can make a Will? 

Anyone can make a Will as long as he or she is not legally barred for incapacity reasons. Incapacity reasons is like age of minority and mental unstable at the time of making a Will as I pointed out earlier. 

Where can a Will be preserved? 

A Will can be preserved anywhere safe, a place whereby no stranger can reach and maliciously affect it. The following are some of places where a Will can be stored; to a lawyer, at the church or mosque or any other religious ministry, at the high court registry, bank, RITA (Registration, Insolvency and Trusteeship Agency) or to any person who is not a beneficiary under the Will.

Note: Take note that a Will is just a document, in terms of legal force, until the maker of it passed away. The legal procedures must be followed in order for it to have an impact.