You should write a will and here's how

Wilma Akuya Osei

Lawyer|| Administrator|| Founder and Managing Counsel, The Pocketlaw Project

If you are a person who believes talking about or planning for death is a death invite then here is fair warning, STOP READING NOW, because that is where this piece is heading!

Death is one of life’s inevitable occurrences, not preparing for it is just like not preparing for pension or old age. When we stop working due to old age or whatever else, a pension plan or insurance is what we rely on. Death will come, willy-nilly, so why not approach it with the same attitude as we do ageing and make things a little easier for those we leave behind? If we did, the Wills Act, 1971 (Act 360) allows us to speak from the grave.

A will is simply an instrument of instruction that a person directs to those who survive them in death. Why? Because the instructions deal with things that must be done after a person is dead and since the person making the instructions would be dead, he or she cannot carry out the instructions. Also, because there are things we own and cannot give up or let go of while we are alive; a good way to ensure those things end up where we want them to, is to make a will. Plus, if we considered all the unhappy stories and drama relating to distribution of property, taking care of spouses and children, managing personal or business concerns etc., not to mention funeral gymnastics when death occurs, planning the aftermath of death is worth a thought. Off course, the Intestate Succession Act (PNDC Law 111) has made things better in cases where a person dies without making a will, but that law is not without its challenges. Read the summary of PNDCL 111 and you will see why.

So yes, you should write a will, and no it is not a death warrant.

To begin let's dispel some of the concerns that get in the way when people are considering writing a will, aside superstition.

1. A will is not only for people who are considered rich. Rich is relative anyway. But more importantly, a will does not only deal with property; it also deals with any arrangements concerning your general affairs - business, family matters, anything you want done or not done when you are no more. For example, you may want your lovely cat to be taken to the cat salon every week by your nephew. Yep, so long as you are not asking for anything unlawful to be done, you can be that ridiculous in your will! After all it is your will.

2. A will though written at a particular point in time, is effective only at the time of death. This is important because it means;

• No one can rely on the contents of a will while you are alive. A will can only be put into effect when a person is dead.

• You can change your mind and write a new will or act in ways that are contrary to what you have stated in your will, and the law will interpret that you changed your mind. For instance, if you state in your will that a certain person should be given a particular property and, in your lifetime, you effectively gift that property or sell it or do something with the property so that it is no longer available, then that statement in the will becomes invalid.

• Although at the time of making a will, you may not have owned certain property that you own at the time of your death, the will is by law interpreted as if all the property at the time of death is included in it. In other words, the will is read as if it was made just before death occurs. Which also means you can give out things you own at the time of death but which are not mentioned in a will or take care of persons who were not in your life at the time of making a will like a wife, husband or child. Remember, you can change the will itself anyway.

3. You do need at least 2 people to witness your will when it is done, however the witnesses do not have to know the actual contents of the will, unless you want them to. Read that again.

Witnesses must simply be aware that the document they are witnessing is your will. In other words, their duty is to confirm that you (or someone you have appointed) willingly appended your/ their signature to a document that you confess as your will. So, do not let the idea that some people will know what is in your will stop you from making a will.

4. A Person who is blind or illiterate can make a will. All you need is a trusted person who will read out and explain the contents of what you have asked to be written down for you and that person’s statement and confirmation on the face of the will that he/ she did just that.

5. Finally, if you make a gift to a spouse in your will, that gift becomes invalid (it is no more a gift) when you and the named spouse part ways. Which means so long as the spousal relationship is broken at the time of death, that former spouse cannot lay claim to the gift in the will unless you have specifically said in the will that it should not be so. It's a pretty interesting provision in the law.

Okay, now that we are over the cold feet, let's see what it takes to make will. There are a few ‘technical’ requirements for making a valid will so it is a good idea to seek good legal help. But nothing stops you from writing your own will if you are confident about following the law. Here are a few things you should pay attention to.

1. Property that does not belong to you does not belong in your will. In other words, you have no business giving out property that does not belong to you. This includes family property, even if you are the caretaker. However, you can manage your share of property owned with others or interest you have in property in your will. Your will is about taking care of ALL YOUR AFFAIRS when you are gone.

2. Have a good idea what your properties are including properties that you know you will inherit in the future or own by yourself. It does not matter if the property in mind will be wholly or partly owned. It is a good idea to write them down.

3. If you have children or spouse(s), their names and ages will be important even if you do not intend to pass on anything to them.

4. If you are mentioning any person, it would be good if you state their full names and identify them in a way that they are unlikely to be mistaken. Do keep in mind, people who are dependent on you, children, parents or people who are ‘family’ that you must make provisions for. If you don’t, they may be able to get a court to do so by varying your will.

5. It is a good thing to have in hand copies of any documents relating to property whether self-purchased, received as gifted or to be inherited.

6. You need to determine who will be your executor or executors. An executor is the person to whom you are giving the responsibility to make sure the wishes in your will are carried out as you intend. The executor is not the one who takes over your property when you are no more and does not have to be a beneficiary of your will.

7. You need to determine who will be your witnesses. Remember that you need at least 2 witnesses. It is best not to use a beneficiary of the will as a witness. Your gift to such a person may become invalid. Remember witnesses do not have to know the contents of your will!

So now, let your will be done!

Do you have any experience of how the existence of a will or the absence of a will affected you or someone you know? Share in the comments or send us a story.