Corona re-emphasises the need to write a will

In chapter 3 of his 1833 book, The Wondrous Tale of Alroy, British novelist, essayist and twice Prime Minister of the UK, Benjamin Disraeli, writes, “I am prepared for the worst but hope for the best.”

No phrase best sums up the times we are going through right now as a nation, and as a planet. While governments and healthcare workers are trying every day to flatten the curve and reduce the terrible grip Covid-19 has on humanity, we can only hope we prevail in the end.

Not to be an alarmist or anything, but for anyone with dependants, now is the right time to get your affairs in order. To be specific, write a will. As Africans, our culture dictates that we shun any talk concerning preparation of death as it amounts to courting death. However, considering the ongoing pandemic, wisdom dictates that we plan ahead. By planning ahead, you can avoid causing you or your loved ones any future anxiety.

WRITING A WILL

A will is a legal declaration by a person (legally referred to as a testator) of their wishes regarding the disposition of their property (and sometimes the disposing of their body) after their demise.

A will provides certainty to the deceased’s surviving dependants by distributing their property according to the deceased’s wishes. It prevents and minimises disputes likely to arise during the division of the property among the deceased’s dependants and family.

This not only minimises disruption in the way of life for the surviving dependents but also any quarrels and bad blood among surviving family members, which many of us have witnessed either personally or read about in the tabloids. A will can be used to distribute real property, including land, as well as movable property, such as money, shares in a company and personal effects. Additionally, one can legally bequeath their digital assets, including their control, to a third party.

A will can either be oral or written. An oral will shall be valid only if made before two witnesses and if made three months prior to the testator’s death. However, any reasonable person will tell you a written will is much more preferred than an oral will, for obvious reasons. Any individual with a sound mind and having attained the age of 18 can write a will. A will written under coercion or a threat of violence is void since a person writing a will ought to exercise free will.

Another requirement for a will to be valid is that it must be signed by the testator or by some other person in the presence and by the direction of the testator. Further, the will must be signed by two or more competent witnesses. Both witnesses must observe the testator, or the person assigned by the testator sign, or an acknowledgement by the testator that the signature or mark by another person was made at his direction. Each of the witnesses must equally sign the will in the presence of the testator.

Although not mandatory by law, the testator may choose to name an executor in the will. An executor is the person named by the will, who will take charge of the distribution of the assets of the deceased.

Where an executor is not named, any persons wishing to administer the estate of the deceased must apply to the court to be named as administrators. This could end up becoming a lengthy process, especially if numerous individuals come forward, seeking to become an executor. It is thus advisable that a testator provide for an executor in their will.

It is important to note that a will can be changed, altered or discarded as many times as the testator wants while they are still alive.

PLAN AHEAD

Another way one can plan for the unexpected is by purchasing life insurance, which several insurance companies offer nowadays. Insurance exists to cover the unexpected. Buying life insurance, a hospital-care plan or long-term care will serve as a financial safety net for unanticipated crises.

What happens during the next few days/weeks/months/years is unpredictable; don't take any chances with your loved ones or dependants. While no one wants to think this terrible virus will knock on their door, everyone should consider planning ahead should the worst scenario befall us.

Planning for an unexpected medical event is like wearing your seatbelt. On any given day, we expect to drive safely to our destination, but we wear seatbelts every time we get in our car as a precaution. Planning ahead during these troubled times is similar; proper planning can mitigate the burdens and obligations of loved ones that we leave behind. So, while we hope for the best, may we also prepare for the worst.

Allan Tuli is an advocate of the High Court of Kenya based in Boston, Massachusetts

Edited by T Jalio