The will as an Instrument of wealth planning.

OUTLINE

1.0   Introduction.

2.0   Characteristics of the will.

3.0   The validity of the will.

4.0   How the will differ with other transaction in the inheritance and  succession of the property of the deceased person.

5.0   How the will act as an instrument of wealth plan.

6.0   Conclusion.

1.0 Introduction

The term will has two meaning ,the first meaning denotes that, will is the metaphysical denote the sum of what the testator wishes or wills, to happen after his death. The second meaning is the physical and denotes that, the document or documents in which the intention is expressed. This discussion entails to give characteristic of will, the validity of will, how the will differs with other transactions given in the inheritance and succession of property left by the deceased person as an instrument of wealth planning, further more discussion on how the will acts as an instrument of the wealth plan and thereafter conclusion of the discussion.

2.0 The characteristics of the will.

The will in the physical sense is the declaration in the prescribed form of the intention of the person making it of the matters which he wishes to take effect on or after his death until which the time is revocable. This explanation provides the following elements of the characteristics of the will.

That the scope of the will is not confined to the disposition of property, but it scope goes further to the duty and obligation vested to the administrator by the maker. The administrator of the will has some duties and obligation to do so as to make sure that deceased’s properties always at safe hands and kept as the deceased planned before his death.

That the will operates only as a declaration of intention. Any will made by the testator carries intention of the maker in which he declared to be followed by the executor of the will, so the execution in operating the will is liable to abide and adhere the declaration of that will as required by the maker. He supposed to operate the will as the maker would operate such plan before he died.

The other characteristic of the will is that, it must be in prescribed form; this meant that for the will to be accepted by the court as the proper will it must be presented in given prescribed form accepted and agreed to the court, and even by the parties to the dispute before the court.

The document is always revocable; the testator may revoke his will at any time before his /her death; but where the testator become unsound mind or loses his testamentary capacity can not revoke the same ,and if make any revocation under situation such revocation will be rendered invalid, and therefore will not have effect once the dispute arose.

The will however take effect only on death of the maker. The beneficiaries and the interested people has to wait until the death of the testator, this means all the beneficiaries do not acquire the interest upon life of the testator. Thus when the beneficiary dies between the times the will is made his interest will no subsist and the maker may re allocate the same to any other beneficiary/heir.

The will is ambulatory in Nature. It is capable of dealing with the property acquired after the date when it was made, provided, and that is, to mean that the property is owned by the testator until his death.

3.0 The validity of will.

In order for the will to be valid should meet certain conditions which needed to be considered by the court and the relevant law in Rule 19 of the GN no 436 of 1963,[1] that if the will made by the illiterate deceased person should be witnessed by two persons one from the family clan and the other from outside the clan member, if the deceased literate the will should be witnessed by four persons, two of them from the family clan member and the remaining two from outside the clan member. The will however must be signed by the maker in the presence of the witness whom also they will cause their signature available to the will. Therefore if the will does not those conditions will be considered defective and invalid will, it was stated in the case of Telentine Nkebwa and another v Mahmud Biiru Civil Appeal no.21 of 1997 Court of Appeal at Mwanza [unreported][2]

4.0 How will differ with other transaction in the inheritance and succession of     property of the deceased person.

The will is distinguishable from other transaction such as gift inter vivos. The gift inter vivos takes effect forthwith. It is the gift which regards the time when it takes effect and the formalities.

The distinction between the will and gift inter vivos is based on the formalities, the formalities of will involves writing, signature and attestation, whereas gift inter vivos once based on land, must be made by deed where the title is registered at the land registry which effected by an instrument of transfer which must be registered, if is the gift of shares in company, must be made by way of transfer and registration, depending on the type of property one he has.

5.0 How the will act as an instrument wealth planning.

As noted above that the will refers to all that a person wishes to happen upon his death. It expresses the wishes of the deceased person upon death. In the will the deceased person make a plan and distribution of his properties he/she accumulated during his /her life times .That in the will maker shows his intention and distribution of his properties. It is the plan which shows the distribution of the wealth left behind by the deceased person ,how the properties left could managed and by whom, it the declaration which shows that who should what and for what purposes, it is the plan that shows the control of property by the deceased person even he is absent. The deceased has to put proper allocation of the accumulated properties on the safe hands, so that upon his death they could continue prosper as it was on the hands of him.

The will is the plan which controls the passage of property upon death of the deceased and maintains control over the property. This mean that the will enable the maker maintain control over the property upon demised. The will gives hope to the testator he will continue dispose his/ her property and his interest over the estate even if he/she dies.

The will is the declaration which enables the deceased to appoint the personal representative of his own choice, this mean that the maker of a will has to appoint personal representative to administer the estate and make sure that his estate will be well administered by the proper person of his choice after his death.

The as the document showing serious plan proposed by the testator make the distribution of the wealth and estate, that which property is supposed to be owned by whom and for what purpose, or who is entitled to get what and who is not supposed with or without conditions or reasons.

The will is the wealth plan which intends to solve conflict and disputes in the family upon death of the testator among the heirs and beneficiaries. That by providing how and whom property is to pass upon the testator’s death making a will avoids squabbles (quarrels) between heirs and survivors over the estate.[3]

The will however, sets plans for collection of debts and credits, the will disclose number of debtors owed by the deceased and the creditors who are supposed to be paid upon collection of the debts. The will gives amount of the moneys which the testator deposited in the bank and the shares in the bank and in the companies and who is supposed to control and maintained those transactions on death of the deceased person.

The will not only set plan for the wealth distribution but also gives direction disposal of the dead person’s body burial which includes the method in which the body is to be disposed. Kwach ,J, stated in Pauline  Ndete Kinyota Maingi v Rael Kinyota Maingi[4] there is no property in a corpse, which a testator can validly dispose off by his will, the executor’s obligation is to give effect to the deceased’s wishes in relation to the disposition of his corpse as far as practicable. The will made in writing should provides for the appointment of the person to administer the properties left by the deceased, appoints the guardians and the trustee who will be responsible in looking for those properties and other deceased family’s liabilities which are in connection with the wealth, debts and credits, bank accounts, deposits and shares of the companies in which the deceased was a member or a share holder.

6.0 Conclusion

Thus, through a will, a testator ensures his estates may be dealt with immediately upon his death.  The making of will enables the testator make full disclosure of all property he/she own or dies possessed of, which is not possible in case of intestacy where a lot of the undisclosed property or assets may be lost.

Generally the will gives future plan intentionally suggested by the testator after his/ her death, the passing and control of property, maintain the control over the property for the benefit of the heirs and other beneficiaries in the family. The will sets future plan for the surviving members of the family after the death of the father/mother. It is the document which carries the intention and the wishes of the testator’s plan on how his property will be managed soon after his departure, who will take close responsibility over the properties, book of Bank account, collection of debts and the way credits will be paid and by whom.

Therefore the will is the aggregate of the deceased’s testamentary intentions, presented in writing, and concern with the disposition of property, and it can also be used for other purposes like appointing a person to administer the estate of testator, appointment of trustee to administer the trust set up under the will, and appointment of guardians for children of the testator who are minors at the time of testator’s death.

BIBLIOGRAPHY.

BOOKS

James. R.W.(1973),Customary Land Law of Tanzania; A source Book, East African                                         Literature, Nairobi.

Musyoka.W(2006),Law of Succession, Law Africa Publishing (K) Ltd, Nairobi.

CASES.

Telentine Nkebwa and Another v Mahmud Biiru Civil Appeal No.21 of 1997 (CA) at Mwanza [Unreported]

Pauline Ndete Kinyota Maingi v Rael Kinyota Maingi Civil Appeal No.66 of 1984 (CA) Nairobi, found in Musyoka at page 31.

---

[1]
                        [1] Government Notice No 436 of 1963,cited in James and Fimbo in Customary Land Law in Tanzania; A source  Book, at page 212.

[2]
                        [2] Civil Appeal No 21 of 1963 Court of Appeal at Mwanza [unreported]

[3]
                        [3] Musyoka, W.(2006),Law of succession, at page 30.

[4]
                        [4] Nairobi Court of Appeal Civil appeal No, 66 of 1984, found in Musyoka at page 31.