A Will is a legal document in which the intentions of someone called a testator (the person writing a Will) are being prescribe, and these intentions are to take effect on or after the death of the testator. These documented intentions of the testator are then handed over to the appointed executor to hold and to act on behalf of the testator for the benefit of the third party called the beneficiary or beneficiaries after the death of the testator. This is because as days passes by, there is an increase in the acquisition of property and the increase in population which by nature leads automatically to the rapid growth of legal and social problems in our society. Thus in order to avoid these problems, we ought to write Wills so that when these problems arise, the already appointed executor (the person whom power is bestowed upon by the testator to act on his or her behalf on dearth) should have a legal grounds of limiting the problems. Because of the importance of a Will, there is a need for every individual in our society to write a Will which in fact for the benefit of the third party called the beneficiary in order to maintain peace and avoid problems resulting from the sharing of property on death of the testator.
Since a Will is a foreign concept in our African society, for it to be valid, the document must follow the provisions laid down in the Wills Act of 1837. these procedures are as follows.
- the Will must be documented
- the person making the Will must be must be mentally capable
- the testators age must be at least 21 years. This is because section 7 of the Wills Act 1837 stipulate that minors cannot make a Will. But the same Act by virtue of section 11 gives an exception to the fact that privilege Wills can be drafted without following the normal procedures
- the person making a Will must have testamentary capacity. That is the testator must
- understand what he or she is doing.
- The testator must sign the Will
- There must be at least two witnesses
- The two witnesses must also sign
Note that once you are planning to draft a Will and also planning to discredit one of your son or daughter from being a beneficiary to your property or when you are drafting a Will and you don’t love one of your son or daughter, you must mention in the Will that you are not going to give any property to this child and then you state your reasons. This is because if you failed to mention this child in the Will, that will be a good ground for the Will to be challenge in court by the child whose name has not been mention to the fact that you the testator was not in a sound memory at the time you were drafting a Will since you could not remember those who are supposed to benefit from the property
Since the writing of a Will is a foreign concept, many people in our society died without living a Will because of ignorance or because they lack the knowledge about the functions of a Will. For example, in Cameroon or in the African society, people will always have in mind that writing a Will is in other way of inviting death upon oneself or inviting the curse of death upon the family. With this mentality, the majority of people will die without living a Will which affect the social status of the family.
Still in the African society particularly in Cameroon, the population believe so much in their customs and traditions which are to the fact that the properties especially the landed property cannot be sold or that the properties can only be pass on inheritance process depending on the customs of the various ethnic groups and their practice. The property will be pass taking into consideration whether the tribe is practicing but the patrilineal or the matrilineal succession. Patrilineal succession is when the property is being pass to the male child of a family. For example, in the Nso tribe in the North West of Cameroon, the customs and traditions demand that when the father dies the property will automatically go to the first son of the family taking into consideration the behavior of the child. While matrilineal succession is when the property is being pass to the first son of the sister for sister of the decease., this means that on death the first male child of the sister to the father or the decease will inherit the property who is not even the blood child of the family the reason being that the woman is the only person who knows where the child is coming from. Example of the tribe that practice matrilineal succession is the Kom tribe in the North West region of Cameroon. Thus the functions of administration are to intervene when problems arise from the sharing of the property according to the customs.
From the above facts, the negative effects of not drafting a valid Will is a good reason why in Cameroon and in Africa as a whole, the majority of civil cases in various courts are landed property cases or cases arising from the miss management or sharing of property. It is from this facts one can see that the functions of living a Will is very important in our society
It is worth to understand that the basic functions of a Will in our society today is for the disposition of the property, show generosity of love to non-family members and the appointment of guardian for the children who are minor.
- A Will maintains family peace
It is not a disputed fact that once a testator drafts a Will the must reigns in the family. This is because the valid Will provide the legal grounds for the members of the family who are the beneficiaries from the hands of the bad faith uncles and aunts. Once a Will is drafted, everybody in the family will know his or her own share in the family property. Thus Wills are very important since there is the avoidance of the family conflict patterning to the sharing of property.
- Drafting a Will leads to cheap administration and administrative conveniences
The cheap administration will be in the way that since the executor will not to go to court in order to obtain letters of administration, follow the intestate succession procedures, no expenses such as stamp duty tax and the executor will not also be expected to be paying the five percent tax of the total estate of the decease to the state. Hence once a Will is drafted, there will not be unnecessary spending
When it comes to the administrative convenience, it will be very simple for the executor to even start managing the property from the date the testator dies with just the grants of a probate to confirm his authority. This is because his or her rights are bestowed on him or her by the Will unlike when somebody dies intestate where there will be need for the administrator to go the court for the grants of letters of administration. Thus drafting a Will is very important to our families and to the society.
- Drafting a Will helps the testator to express his love for those who cares for him in his life time
The practical example of this point is that if you are sick and all your children abandons you and the child of your friend or your friend keep on taking care of you for many years and helping you do everything. It is but normal that you need to compensate that your friend or to show appreciation to the one who cares for when you were sick. To show this love, you must include that your friend in the Will since if not included, your friend will not have legal grounds to also enjoy from the property after your death. Therefore, the functions of drawing a Will is important in demonstrate generosity
- Testamentary guardians are also appointed in a Will.
The functions of living a Will or the importance of living a Will toward the minors or the incapable persons is that the testator will have the chances to appoint those who can take care of them. For example, if you have children who are still minors and they cannot take care of themselves you can appoint the guardian who can be taking care of them in the Will. It is worthy to note that once the minors reach the age of discretion the responsibility of the guardianship will automatically be acquitted. Thus one of the functions of a Will is to appoint testamentary guardian who can take care of the minors in the family of the testator
- A Will help to limit burial problem
Problems always arise in our society patterning to the burial issues of the decease. In order to limit this problems, it very important to draft a Will and give the direction or your wishes in relation to your dead body. For example, the testator may during his or her life time request that his lifeless body should be used for research by scientist. Though this expression is not legally binding since the family can still decide otherwise.
The second scenario is that the testator can state the place in which he wishes that his body should be laid be to rest, he can also choose the man of God to officiate his burial and the church. Thus with this, the functions of living a Will is important in order to avoid the family problems and the problems in our society arising from the decease body and the burial issues
- Drafting a Will is a big step in limiting or avoiding the rule of intestacy.
Since writing a Will is a foreign tradition within the African continent, failing to write it and when the problems arises from the sharing of the property, the decease property will be shared by the court order taking into consideration the provision of laid down in the Administration of Estate Act 1925. This provisions are to the fact that when the decease dies intestate, the property will pass to the next of kin. The problem here is that the next of kin may be the one that the decease person did not love or whom the decease did not like to hand over his or her property to him or her. Thus writing a Will is important so as to appoint but the person whom you like to take care of your family and also manages your property.
From the above functions of a Will to our families and to our society, it is clear that we ought to draft a Will so as to enjoy its importance. Some people failed to understand the functions of living a Will in our society because of ignorance toward this concept of documenting their afterlife wishes. We should take upon ourselves to educate the population about the functions of a Will or the functions of living a Will.