How to write your own will

THE previous article touched on disinheritance. If you missed it you write to me so that I share it with you. Disinheritance stems from the concept of freedom of testation which recognises the power of testator to free make his or her will, and to his or her property. Today, I want to continue the discussion on will writing, in particular with emphasis on how to write your own will. We are going to look at what are called, “Standard Clauses”.

Wills have clauses which are accepted to be standard and these have been in existence for quite a number of years. You may see these if you search for sample wills or from your will if you already have a will.

Title Clause

Like any other document a will has a title and this needs to be the first part of the will and it can read, “This is the Last will and Testament of me . . .” It contains the names, date of birth, address, marital status of the testator and any other essential details. It helps in the establishment of the testator’s domicile.

Revocation clause

This has the effect of cancelling other wills and testamentary acts made by the testator. It usually reads; “I revoke/cancel/annul all former wills made by me.” This is usually done as a safeguard in case the testator had more than one will .In the case that the testator has more than one will the practice is usually that a will that has the last date will be used for purposes of execution.

Appointment of executor

An executor has been defined as a person who sees to it that the wishes of the testator have been followed. A will not be valid if it does not nominate an executor. It is usually encouraged to appoint more than one executor in your will in case the one you appoints fails to take up the task or predeceases you. The practice is to exempt the executor from providing security which is usually lodged with the Master of the High Court if a person takes up this office and is ready to start the work.

Your estate should bear the costs for security and this should be made clear in your will. Anyone can be executor provided that he is of a sober mind and above the age of eighteen which is the age of majority. Some testators usually want to appoint professional executors and these include lawyers. This is actually encouraged as these have the requisite experience and the time and resources to expedite the whole process of execution. You do what you feel comfortable with however.

Burial arrangements

Depending with individuals some people want to be buried when they die, some want to be cremated and some want their bodies to be donated for scientific research. People differ but your wishes with your body remains can be contained in your last will and testament.

Other people make provisions for tombstones for their graves in their wills and inscriptions to be put on them. Others can even stipulate the type of coffin or casket they want, the burial place and the manner of burial. In 2020, the High Court had to determine where one late fitness model was to be buried. This could have been prevented by having a will in place. The things we may take for granted may actually turn out to serious issues when you are no longer there. Determine where and how you want your remains to be interred.

Bequests and legacies

This section offers you opportunity to give specific items to individuals you want. Ensure that the items you want to bequeath are adequately described and also are in existence. The names of the recipients should be clearly provided. Their dates of birth, identity numbers and addresses help in ensuring clarity in the descriptions. Dates of birth and identity numbers help in instances where there are two or more people with the same names and even dates of birth. It will not be fair that the intended person fails to benefit because the testator failed to adequately describe the name and details of the beneficiary.

Some spouses simply appoint the other surviving spouse to be the heiress of the whole estate. There is fear as previously noted that the inherited property might pass on to the next husband hence some testators do not adopt this method. A will can provide for the “protection” of inherited property and we will discuss this under the protection clause. If you provide for this it will be good to leave your property in the hands of your wife or husband as long as it is in his or her best interests.

Residue

After giving various legacies there is a possibility that some other property may remain undistributed and this is called residue. The usual practice for married couples to give the residue to their wives or husbands. This ensures that all the property is distributed and nothing remains unattended. You are free however to distribute it to whomever you want that’s why it is called a will. You can also bequeath the residue of your estate to a church or ministry of your choice or even a school.

Protection Clause

It protects the inherited property from falling in the community of property of any marriage or union. This clause therefore ensures security of this property if the beneficiary is going to marry or to remarry. A protection clause could read as follows:

“I direct that the benefit to which any beneficiary is entitled in terms of this my Will shall not fall into the community of property or the joint Estate of any spouse to whom such beneficiary may at any time be married nor be subject to any accrual regime, nor in the case of a female beneficiary, be subject to the marital power of her husband.”

An example where inherited property can be lost is where a husband married in community of property incurs liability and judgment is obtained against him.

There is a possibility that in a bid to settle the same the Messenger of Court or the Sheriff can attach property including the property inherited by the wife and sell it in execution. This will be for the simple reason that the husband has power of the matrimonial property. This is the scenario most people are worried about thus the inclusion of the protection clause.

Condition clause

Some people would like to put conditions on inheritance by a person. This is allowed in terms of the law if the conditions are not contrary to public policy that is accepted values by the society. Some people would like a person to benefit from the estate if for example he changes his name and adopts the name of the testator within a given period of time.

There is absolutely no problem with this as it does not offend public policy. The courts have however held that a condition that prohibits a person from marrying is contrary to public policy and therefore void ab initio.

However the courts have not found any problem with conditions that restrict a person from marrying a person from a different type of religion. Conditions that prohibit procreation have also been held to be ineffective. If you are to contemplate imposing conditions please ensure that they adhere to set standards in terms of the law.

Thirty day clause

This clause is meant to safeguard costs of execution and estate duty in case there is subsequent death of a testator and beneficiary. This is a case of couples where they are involved in an accident where one dies and the other survives and may be dies with in the following thirty days.

The rationale is mainly fiscal and convenience in execution and taxation. In the absence of this clause it is possible that estate duty can be levied on two estates vis the estate of the late husband and the estate of the late wife who would have died subsequent to the same accident.

Per stirpes

This clause applies in instances where the beneficiary predeceases the testator. In such a scenario the benefit due to him would pass on to his or her children. Some testators do not want such a situation hence they provide for it, that is specifying who would benefit if the beneficiary predeceases the testator.

Guardianship clause

Some testators usually provides for the nomination of guardians in their wills that is the person who would look after their children particularly when they are minors. The practice is also to exempt these from providing security in respect of their appointment as such.

The guardian will be appointed in terms of the Guardianship of Minors Act. The procedure will however not be discussed in this writing. The guardian will be empowered in terms of the will. Some testators can actually create a simple trust that will be administered for the benefit of the children. This trust also applies in instances where the beneficiaries are minors and are not capable of receiving the property.

You can specify the age the children are going to be given their inheritance. Some prefer 18 while others 21 but the discretion is absolutely yours. This clause is also optional but I encourage all prospective testators to consider it when writing their last testaments. The Clause is more useful where there are minor children who still want maintenance.

Alterations

Most of the time people want to amend their wills either because new property has been acquired and needs to be included in the will or new children have been borne. It is possible that you can make these amendments as these would be deemed to be part of the will and will have the same effect as if it had been incorporated in the will itself. It is however encouraged that you make a completely new will to embrace the amendments. This will ensure clarity and conspicuity in your will.

Execution

This is one of the most important clauses of a will and determines the validity thereof. This consists of the date, place where the will is signed and the name of the testator must be there and it must be accompanied by signatures of at least two witnesses to ensure that it is the testator who is singing the will. The witnesses must sign in the presence of each other and in the presence of the testator.

The witnesses must comply with the requirements listed in the section dealing with witnessing. There is no need, though it is not prohibited to write personal details about the witnesses e.g. the dates of birth, employment details or addresses where they stay. If you can do this there is no problem it will serve the purpose of clarity as to the persons who witnessed the will. Execution must take place as soon as the will has been concluded. In instance when a lawyer is to draft a will for you it is vital that you sign as soon as the drafting is completed.

Confirmation

After a will is made, it must be lodged with the Master of the High Court in Harare or Bulawayo. Once the Master accepts the will he stamps it and puts a reference number and retains one copy and gives you the other copies. The advantage of lodging a copy with the Master is that upon your death there will not be serious issues on authenticity of the will.

There are instances when people pitch up with a will from nowhere, and people are quick to raise suspicions. Once the will has been lodged, your intended executor, will advise the Master of your death and the administration process is set into motion as per the provisions of the law.

If your will is not lodged with the Master of the High Court, upon your death, the first thing for the executor is to register that will with the Master. This causes unnecessary delays in the administration of estates thus it is advisable to make hay whilst the sun shines and lodge our wills with the Master as soon as they have been executed

Further points when writing a will

This advice will not be found in most legal texts as it is way beyond their scopes most of the time but the I thought it worthwhile to discuss them with you. I hope that you will take it seriously when writing your last will and testament

State of mind

Generally speaking the person writing a will must be in sound and sober senses and of a disposing mind. Avoid making your will when you are angry. The same can be said when you also very excited. Decisions you make when you are angry or very excited have serious effects on other people.

Ensure that when you are writing your will you are in the normal mood. It is very easy to deprive other people of inheritance for simple reason that you made the decision when you were angry. Furthermore you can benefit someone at the expense of the others simply because you were excited at the time of attestation.

At the same time ensure that when you are very happy or excited about something or about a particular person do note writing anything to the effect of a will. Your decisions will obviously be biased and this should be avoided. There is a possibility in this instance that you can bequeath the majority of your estate to an individual at the expense of others. Do not be under pressure from anyone to write a will.

This has been the case in many instances where relatives or spouses put a person under pressure to write a will because of family conflicts or other causes. This is a challenge in the African Society when relatives want to protect property from being inherited by spouses or other people they do not want to inherit the property. Ensure that your decision is as independent and guided (professionally) as possible.

Health

Avoid making a Will when you are very sick or at the point of death as your decisions usually will be impaired by the need for convenience. Ensure that you are of sound health and mental state when you want to write your will. However if you do not have one and you feel that you might not have many more days it is advisable that you contact your lawyer if you have one and give him instructions to write one for you and execute it immediately.

Discrimination

For parents avoid discriminating children when making wills as this can cause tensions when you die and may be tear up the family. Try to treat them equally and if there is a child you want to favour more than the other in your will you are advised that you do it with wisdom and the greatest of care.

Controlling from the grave

Wills embrace the wishes of a person but avoid controlling everything from the grave in the sense that your will seriously controls every detail of the beneficiaries lives. A will should simply enable continuity for those people you would leave on earth and not be a hindrance and threat to continuity itself.

I hope and trust that this article has shed some bit of thoughts on the subject of Will Writing.

The next articles will cover on the essential requirements for a valid will.

*LEGAL DISCLAIMER*: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

◆ Arthur Marara is a corporate and family law attorney. As an attorney, he has worked over the years on matrimonial and inheritance matters including but not limited to drafting wills, and preparing, and lodging family trusts. Follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on + 263780055152 or email attorneyarthurmarara@gmail.com