- Whom to bequeath to
A testator can bequeath to any person of their choice this includes their children, dependent relatives and friends. It is important to note that a will cannot be amended after the testator’s death to include anything he/she could have omitted, unless it is proven through court that a dependent of such deceased was left out under terms of equity.
Section 37 of the Succession Act as Amended provides for the maintenance of spouse, children, lineal descendants, and dependant relatives under a will. The Court under Section 38 as Amended has power to order maintenance.
A bequest should be seen to be free of any undue influence for instance bequeathing to a lawyer may be inferred to be undue influence due to the fiduciary relationship between an advocate and a client.
A will cannot by way of insufficient attestation due to benefit given by the will, to any person attesting it, but the bequest or appointment shall be void so far as concerns the person so attesting, or any person claiming under either of them. However, a beneficiary cannot lose their bequest by attesting a codicil which confirms the will.
The property to be bequeathed.
A will must dispose of only the property that is part of the deceased’s estate. It may list all property and assets that the testator owned at the time the will was created as part of the will or in a separate schedule that is referenced in the will.
There are some properties acquired due to contractual relationships and those need not be included in the will; for instance, insurance and retirement benefits because the beneficiaries are clearly provided for in those contracts. Section 36 as Amended excludes residential holding from forming property to be disposed in the will.
Legally, the testator dies intestate with regard to any property not mentioned in the will as long as such property is not disposed of by a valid testamentary disposition but testate with regard to any property mentioned in the will, if there was any.
- Executor
An executor must be named in the will. An executor is appointed by a will to administer the testator’s property and to carry out provisions of that will. The duties of an executor include to bury the deceased, to prove the will, to collect the estate, to pay the debts in their proper order, to pay the legacies, and distribute the residue among the persons entitled according to what is set in the will. He or she may bring actions against persons who are indebted to the testator or are in possession of property belonging to the estate. It is advisable to have two executors and one should appoint those they think are capable of managing their estate in accordance with the will. However, where an executor is not named, court may duly appoint one for the purpose of managing the estate of the deceased, thus the estate shall apply for letters of administration with wills attached in this circumstance.
The person or persons who would be entitled to the administration of the deceased's estate if he or she had passed away intestate, as well as any other legatee with a beneficial interest, or the Administrator General, may be admitted to prove the will and may be granted letters of administration in accordance with the terms of the will when there is neither an executor nor a residual legatee, or he or she declines to act, is incapable of acting, or cannot be found. Section 199 of the Succession Act as Amended.
Section 202 of the Succession Act stipulates that administration shall be awarded, subject to Section 4 of the Administrator General's Act, to the person entitled to the largest share of the estate under Section 27.
One can appoint a lawyer, a friend, a relative or certified accountant as an executor of their will. In the case of Cissy Nabakara v. Alexandria Kalemela CS. 691/1991, Court noted that the widow is the most appropriate person to administer her late husband’s estate. The same was reiterated in Mallinga v Obukunyang (HCT-04-CV-CS 13 of 2013) [2015] UGHCFD 39. The Succession Act as Amended adopts a gender-neutral language thus a spouse is the most appropriate person to administer the estate of their deceased partner.
- Changing/revocation of a will
When a person is competent to dispose of their property by will, they have the right to revoke or change their will at any moment. It is advisable to change or revise a will after every two years due to change; this is because a person may obtain properties that they desire to include in their will, some of the beneficiaries may have died and there is also a testator marrying or divorcing and such changes may need to be included in the will. Wills can therefore be revoked by a codicil, by marriage, by another will or some writing declaring an intention to revoke an earlier will or codicil executed in a manner as required by the Succession Act as Amended.
A codicil is a document duly attested that amends or adds to or changes the will made by a testator, expressing his or her intentions of making the document form part of the will. At times, a testator may refer to other documents duly written within their codicil or will expressing their intentions. In such cases, the said document shall be taken as forming a part of the will or codicil.
The document that contains the revocation clause need not be a Will and hence not be one that can be admitted to probate. The sole prerequisite is that it be carried out in the same manner as a will- Re Howard, Howard v. Treasury Solicitor (1944) P.39.
Where a will or codicil has been revoked, a testator can only revive it by re-executing it or by codicil executed in the manner required showing an intention to revive it.
- Where to keep a will
The Succession Act provides the office of the Chief Registrar and deputy Registrar of the High Court as appointed places for the safe custody of the wills of living persons, especially for bequests to religious or charitable causes.
One can also keep their will with a lawyer, the church or their bank or someone they trust.
It is important to write a will as it establishes the testator’s wishes and also ensuring that one’s wishes are fulfilled upon their death, it’s important to have them properly and clearly written down.
Disclaimer
No information contained in this article should be construed as legal advice from Kleeva Associated Advocates or the authors. Neither is it intended to be a substitute for legal counsel on any subject matter. The information contained in the Site is general legal information and should not be construed as legal advice to be applied to any specific factual situation.