Why it is a wise thing to write a will

WHY IT IS A WISE THING TO WRITE A WILL

This past week saw the conclusion of two multibillion succession cases namely the former cabinet ministers in the Kenyatta era and the Kibaki era ; Njenga Karume and Peter Mbiu Koinange. The Latter case had been in Court for the last 40 years. I had the privilege of attending a few hearings while working at one of the law firms that was representing one of the widows.

What caused the delay in determining the case and probably stalled the case for 40 years resulting to the families incurring huge legal bills could have be avoided by a simple instrument called a WILL. Justice Aggrey Muchelule in his obiter dictum stated that: “one wishes that all Kenyans can get into the habit of planning their lives and especially thinking about what will happen to their families and properties upon their death. It is not too much to ask that the planning be by way of writing a will.”

A will according to Section 3 of the Succession Act is a legal declaration by a person of his intentions or wishes regarding the disposition of his property after his death duly executed in accordance with the Act.

Most people view the topic on death as morbid and this has contributed greatly to the reluctance to prepare a will. Other people feel that they are too young for the possibility of death to happen to them while others are generally ignorant of this major topic. I will break down the importance of planning an estate through writing of a will.

A will gives the privilege of appointing the right persons to inherit your property instead of leaving this important decision to be made by other people after ones death. One may have a special interest in charity and may wish to leave a portion of their estate to the disadvantaged. To avoid squabbles by members of one family, the will ensures that the consideration is not opposed.

The will making process is personal and this allow the maker to disclose all his properties therefore giving the peace of mind to those who are left behind.

Making a will help to avoid the rules of intestacy. Intestate is where one dies without a will. The intestacy procedure gives priority to the next of kin and this provision ensure the next of kin receives a share of the estate which is arbitrary but are often unsuitable.

The rules of intestacy only make provision for the deceased’s next of kin. It is only by making a will that one can bequeath others who are not related to him e.g. friends and charity. This is very common in the western world where billionaires give their wealth to foundations. 

      One is able to maintain control of their estate while present and while absent. An example is where a wife rather than leaving her estate in the control of her husband can give the shares of the estate to her children instead of expecting that the husband will give the shares of the estate to her children while she is gone. The wife can instead give a life interest of her estate to the husband. A life interest only entitles the husband the income for the estate.

The making of a will grants the maker the opportunity to appoint executors of the will of their choice for their estate. These would be persons that the maker of the will have full confidence that they would see their wishes to the end. Conversely in intestacy procedure, the court appoints administrators who have no interest of the deceased but the duty to distribute the shares of the estate.

The executors of the will while appointed start the administration of the estate upon death of the maker of the will while in intestacy the personal administrators have to be appointed by the court which takes long compared to the appointment of the executors in a will.

COVID19 has taught us that a pandemic has the possibility of turning lives around. One moment we are busy enjoying social gatherings and the next we are locked down in our homes. What is even sad about the pandemic is that anyone from the age of 0- 80 can be infected with the virus. The bottom line is that everyone needs to plan their life by considering writing a will now more than ever. 

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