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Will your last wishes be honoured?
The unfolding succession debate in Tooro Kingdom raises a question that reaches far beyond the royal palace: when we are gone, will our last wishes truly be honoured?
Debra Talemwa. (File)
By: Admin ., Journalist @New Vision
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OPINION
By Debra Talemwa
The unfolding succession debate in Tooro kingdom has reminded us how powerful family dynamics, tradition, institutions and competing interests can shape decisions, particularly at moments of succession. It also raises a question that reaches far beyond the royal palace: when we are gone, will our last wishes truly be honoured?
At the heart of every testator or testatrix is a desire that, upon their demise, their final wishes be respected and given effect. A Will, however, should go beyond merely expressing a person’s wishes; it should anticipate and address foreseeable legal dilemmas that may arise after death, since death leaves no room for clarification, explanation or correction. The importance of making a clear, properly executed and legally sound Will should not be underrated. A well-drafted Will does more than distribute property; it provides clarity, reduces uncertainty and minimises disputes among those left behind.
The role of an executor should be as clear as day follows night, with the path mapped out and responsibilities expressly set out in the Will, leaving no room for guesswork or disputes over the testator’s final wishes.
In Uganda, the legal framework governing succession is anchored in the Constitution of the Republic of Uganda, the Succession Act, Cap. 268, and other applicable laws.
These laws provide the framework for making, executing and revoking Wills, the requirements for validity, the circumstances in which they may be challenged or rendered ineffective, and the manner in which estates are administered. They safeguard testamentary wishes while protecting beneficiaries and others whose interests may be affected.
Except for the case of privileged Wills, a Will must generally be in writing and duly executed by the testator or testatrix. The testator or testatrix must sign or affix their mark, or direct another person to sign on their behalf and in their presence. The Will must be attested by two or more witnesses, each of whom must have seen the testator or testatrix sign, affix or acknowledge the signature or mark. Each witness must then sign or affix their mark in the presence of the testator or testatrix on every page. These formalities safeguard the document’s authenticity and the testator’s free will. A privileged Will may be made by a member of the defence forces employed in an expedition or engaged in actual warfare, or a mariner at sea, and may be in writing or by word of mouth.
The role of an executor should be as clear as day follows night, with the path mapped out and responsibilities expressly set out in the Will, leaving no room for guesswork or disputes over the testator’s final wishes.
In Uganda, the legal framework governing succession is anchored in the Constitution of the Republic of Uganda, the Succession Act, Cap. 268, and other applicable laws.
These laws provide the framework for making, executing and revoking Wills, the requirements for validity, the circumstances in which they may be challenged or rendered ineffective, and the manner in which estates are administered. They safeguard testamentary wishes while protecting beneficiaries and others whose interests may be affected.
Except for the case of privileged Wills, a Will must generally be in writing and duly executed by the testator or testatrix. The testator or testatrix must sign or affix their mark, or direct another person to sign on their behalf and in their presence. The Will must be attested by two or more witnesses, each of whom must have seen the testator or testatrix sign, affix or acknowledge the signature or mark. Each witness must then sign or affix their mark in the presence of the testator or testatrix on every page. These formalities safeguard the document’s authenticity and the testator’s free will. A privileged Will may be made by a member of the defence forces employed in an expedition or engaged in actual warfare, or a mariner at sea, and may be in writing or by word of mouth.
As a general rule, only a person, who is of sound mind and not a minor, may validly dispose of their property by Will. The testator or testatrix may, at their discretion, adopt the statutory form prescribed under the Act. A Will need not be clothed in technical or elaborate legal terminology, but should clearly and unambiguously express the testator’s testamentary intentions, so that those charged with giving effect to it can readily ascertain what was intended.
A Will should, as far as practicable, provide for the testator’s estate, including specifically identified assets and the residue. Where a testator wishes to alter, add to or explain an existing Will, this may be done through a codicil. A codicil is a testamentary instrument that explains, modifies, adds to or revokes particular provisions. Once validly executed, it forms part of the Will and is read together with it when determining the testator’s final testamentary wishes.
Ultimately, while the law seeks to protect interests of the deceased and those left behind, we must be vigilant and that the document intended to preserve our final wishes does not fall foul of the law. Those administering an estate can only give effect to wishes that are legally valid, clearly expressed and capable of enforcement.
A Will is more than a statement of intention; its validity, clarity and proper execution may determine whether those wishes are honoured or become the subject of dispute. Where the law leaves room for uncertainty, the principles of equity and, where applicable, recognised cultural norms, may assist in resolving the matter, provided that such norms are consistent with the Constitution.
The question, therefore, is not simply whether you have a Will, but whether your Will, will stand the test of authenticity and validity amidst the noise and your silence.
The writer is a lawyer
A Will should, as far as practicable, provide for the testator’s estate, including specifically identified assets and the residue. Where a testator wishes to alter, add to or explain an existing Will, this may be done through a codicil. A codicil is a testamentary instrument that explains, modifies, adds to or revokes particular provisions. Once validly executed, it forms part of the Will and is read together with it when determining the testator’s final testamentary wishes.
Ultimately, while the law seeks to protect interests of the deceased and those left behind, we must be vigilant and that the document intended to preserve our final wishes does not fall foul of the law. Those administering an estate can only give effect to wishes that are legally valid, clearly expressed and capable of enforcement.
A Will is more than a statement of intention; its validity, clarity and proper execution may determine whether those wishes are honoured or become the subject of dispute. Where the law leaves room for uncertainty, the principles of equity and, where applicable, recognised cultural norms, may assist in resolving the matter, provided that such norms are consistent with the Constitution.
The question, therefore, is not simply whether you have a Will, but whether your Will, will stand the test of authenticity and validity amidst the noise and your silence.
The writer is a lawyer