Well-knit families have been left in disunity after a relative dies intestate. The unfortunate scramble for property results in long-lasting and bitter litigation in courts. There are also cases where a Will left is declared invalid and unfit to be admitted to probate. This arises where the deceased, for lack of knowledge fail to follow the steps for the execution of a Will.
A Will may be defined as a declaration in a prescribed manner of the intentions of the person making it with regard to the matters which he wishes to take effect upon or after his death. Simply put, it is a testamentary intention, which only takes effect after the Testator’s death.
The question ‘who can make a will’ is answered by the Wills Act. The law provides that any person of sound mind above the age of 18 can make a will. This provision does not discriminate in any manner with regards to the creation of a will. The testator can only dispose of property that belongs to him. A person suffering from insanity or infirmity of mind cannot make a will because it is believed that he cannot form an independent intention to dispose of his estate. This can change when the infirmity is cured.
Another important feature validating a will requires that wills be written and signed by the Testator and in the presence of two (2) or more witnesses.
The will has to be written on a durable paper. This can be in the Testator’s handwriting, typed or written on the Testator’s behalf. The intention is to ensure that the exact and precise intention of the Testator is captured.
To give force to the will, the Testator has to personally sign the will in the presence of two (2) or more witnesses. The Testator can also direct another individual to sign for him but will need to have this witnessed by two (2) or more persons. It is important that everything takes place in the Testator’s presence. Any further disposition of property written under the place of the signature will not be admitted as part of the will. This is a security measure designed to ensure that unscrupulous people do not “cook” new dispositions to serve their selfish interest.
The law is also not oblivious of the peculiar challenges of the blind and illiterate. The law requires that a competent person (i.e. one who understands and appreciates the social and legal importance of wills) reads over and explains to the understanding of the blind or illiterate Testator.